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1: The Individual Mandate Violates the Original Meaning of the Constitution
Article 1, Section 8 of the U.S. Constitution grants Congress the power “to regulate commerce...among the several states.” The framers and ratifiers of the Constitution understood those words to mean that while congress may regulate commercial activity that crossed state lines, Congress was not allowed to regulate the economic activity that occurred inside each state. As Alexander Hamilton—normally a champion of broad federal power—explained in Federalist 17, the Commerce Clause did not extend congressional authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” In other words, the Commerce Clause was not a blank check made out to the federal government.
Yet in its decisions in both Wickard v. Filburn and Gonzales v. Raich, the Supreme Court held otherwise, allowing Congress to regulate the wholly intrastate cultivation of wheat and marijuana, respectively. Those decisions cannot be squared with the original meaning of the Commerce Clause. As Justice Clarence Thomas remarked about the majority’s reasoning in Raich, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”
Unfortunately for constitutional originalists, Thomas is unlikely to persuade a majority of his colleagues to wipe the slate clean by overturning Wickard and Raich. But as I explained earlier, the Supreme Court already has sufficient reason to strike down the individual mandate without touching any of its existing precedents. That approach—which targets the mandate's unprecedented regulation of inactivity—could satisfy both Thomas and his faint-hearted originalist colleagues on the bench. If five or more justices are interested in expressing at least some fidelity to the text of the Constitution, the individual mandate is finished.
Damon W. Root is a senior editor at Reason magazine.