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3. The Individual Mandate Cannot Be Justified Under Existing Supreme Court Precedent
Defenders of the individual mandate will tell you that of course Congress has the power to compel every American to buy health insurance from a private company. “Under an unbroken line of precedents stretching back 70 years,” argues liberal University of California law professor Erwin Chemerinsky, “Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce.”
It’s true that the Supreme Court has greatly expanded Congress’ regulatory powers. In the 1942 case of Wickard v. Filburn, the Court held that the Commerce Clause allowed Congress to forbid an Ohio farmer named Roscoe Filburn from growing twice the amount of wheat permitted by the Agricultural Adjustment Act and then consuming that extra wheat on his own farm. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California still counted as commerce “among the several States” and was therefore open to federal regulation.
Yet neither of those precedents stretched the Commerce Clause so far as to allow Congress to regulate inactivity—such as the non-act of not buying health insurance. As the National Federation of Independent Business argues in its brief, “uninsured status neither interferes with commerce or its regulation nor constitutes economic activity. Instead, the uninsured’s defining characteristic is their non-participation in commerce.”
The Supreme Court has never before granted Congress the unprecedented power to regulate inactivity under the Commerce Clause. If the Court sticks to its own precedents, it won’t do so now.
(Click below to watch Reason.tv's "Wheat, Weed, and ObamaCare: How the Commerce Clause Became All Powerful.")