Over at The New Republic, Jonathan Cohn summarizes the constitutional arguments for and against ObamaCare's individual health insurance mandate. The generally fair-minded piece is marred by a puzzling focus on Lochner v. New York, the 1905 case in which the Supreme Court overturned that state's limits on work hours. Cohn discusses the case toward the beginning of his article and returns to it at the end, speculating about whether a successful challenge to the health insurance mandate would signal a "return to the Lochner era" or "a step in that direction."
That's weird, because the basis for Lochner was the 14th Amendment, which the Court said protected freedom of contract from unjustified interference by a state, "except in the legitimate exercise of its police power." Finding that New York's law was not a legitimate exercise of its police power, the Court overturned it. By contrast, as Cohn explains, the main issue in the challenges to the health insurance mandate is whether it can be justified as an exercise of the federal government's constitutional power to "regulate commerce...among the several states."
Lochner not only did not involve the Commerce Clause but could not have, since it dealt with state regulation of intrastate economic activity, as opposed to federal regulation of interstate commerce. Likewise, the ObamaCare cases do not and could not hinge on the 14th Amendment's liberty guarantee, which applies to the states, not the federal goverment. If the Supreme Court ultimately concludes that the health insurance mandate exceeds Congress' power under the Commerce Clause, it will not make the 14th Amendment any more viable as an instrument to protect economic liberty from state and local regulations. So what the hell is Lochner doing here, aside from unjustifiably scaring progressives about the prospect of judicial activism on behalf of laissez-faire principles?
Getting back to the issues actually at stake in the ObamaCare cases, Cohn correctly identifies the activity/inactivity distinction as the most promising basis for overturning the mandate without revisiting the "substantial effects" doctrine (which holds that the Commerce Clause encompasses instrastate activities that have a substantial effect on interstate commerce):
In this reading, all of the past rulings on the Commerce Clause, even those acknowledging its broad reach, refer to the government's authority to regulate activity. But neither the Constitution nor the judges who have interpreted it ever suggested the government had the right to regulate non-activity—which is a fair description, according to these lawsuits, of a decision not to obtain health insurance. Like many good constitutional arguments, the argument can be put a lot more simply: If the government can penalize you for not buying insurance, can it also penalize you for not buying a television or a GM car?
John Yoo, the conservative Berkeley law professor who served in the administration of George W. Bush, makes the argument this way: "The court has never upheld a federal law that punishes Americans for exercising their God-given right to do absolutely nothing. Even the furthest reaches of the Commerce Clause have extended only to affirmative actions, such as growing wheat or possessing illegal drugs. The only counterexamples that come to mind are the draft and jury duty, and those arise from other constitutional duties than Congress' power over interstate commerce."
Cohn, not surprisingly, is unpersuaded:
Everybody will, at some point, need some form of medical care. And virtually everybody will, at some point, face medical bills far in excess of their ability to pay out of pocket or with savings. Every one of these people is engaging in a form of activity: choosing how to pay his or her medical bills. Regulating that active choice seems firmly within the contemporary understanding of the Commerce Clause’s reach....
But still, once the government forces people to buy a private product, can't it force people to buy anything—even the proverbial GM car, as so many critics have suggested? Hardly. Cars, after all, are not like health care. Not everybody will need one.
But even those who do not buy cars need some form of transportation. By Cohn's logic (which is to say, the Obama administration's logic), the apparent inactivity of not buying a car is actually a decision to get around through other means, and such decisions, in the aggregate, have a substantial effect on the national economy. If for some reason this argument still does not apply to cars, what about food, clothing, and housing? These are all things that "everybody will, at some point, need." Hence the purchase of government-approved food, clothing, or housing presumably could be mandated in the name of regulating interstate commerce.
Still, I agree with Cohn that the activity/inactivity distinction is not completely satisfying. Here is my crazy proposal, which he no doubt would find even more terrifying than "a return to the Lochner era": Regulation of interstate commerce should be limited to regulation of interstate commerce.