In an August column about the 11th Circuit ruling against ObamaCare's individual health insurance mandate—the decision the Supreme Court is now reviewing—I noted the basic problems that opponents and supporters of the mandate face in trying to reconcile their positions with the Court's Commerce Clause precedents:
Because the U.S. Supreme Court has treated the power to "regulate commerce…among the several states" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think. But...the law's defenders have a corresponding problem. Because a limitless Commerce Clause contradicts a fundamental constitutional principle [the doctrine of enumerated powers], they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far they have been unable to do so.
Judging from yesterday's oral argument, that remains true. Consider this exchange between Justice Anthony Kennedy and Solicitor General Donald Verrilli:
Kennedy: Your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?
Verrilli: Yes. The rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand....
Kennedy: But why not? If Congress says that the interstate commerce is affected, isn't...that the end of the analysis?
Verrilli: No....The difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.
Notice that Verrilli implicitly accepts his opponents' activity/inactivity distinction, saying a person's failure to buy health insurance only looks like inactivity; it is in fact a decision about how to pay for services in a market he has already entered (or will soon enter). That's an argument the adminstration has been making for some time now. But in rejecting the idea of requiring purchases to stimulate demand, Verrilli seems to contradict the logic of Wickard v. Filburn, the 1942 decision in which the Supreme Court said a farmer could be prevented from growing wheat for his own use in excess of a government quota because his self-sufficiency, combined with that of other similarly situated famers, exerted "a substantial economic effect on interstate commerce" by reducing aggregate demand, thereby pushing prices down. The quota did not directly command Roscoe Filburn to buy wheat, but that was its intended function in this context. So if the federal government is going to start making people buy things, why is stimulating demand an impermissible aim under the "substantial effects" doctrine?
Later in the argument, Justice Samuel Alito asked Verrilli to "express your limiting principle as succinctly as you possibly can." Verrilli's reply:
We got two and they are—they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating—is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It's like—it's very much like Wickard in that respect. Very much like Raich [the case dealing with homegrown medical marijuana] in that respect.
With respect to the—with respect to the—considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the—the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when—when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
So those—those are our views as to—those are the principles we are advocating for and it's, in fact, the conjunction of the two of them here that makes this, we think, a strong case under the Commerce Clause.
They've had two years, and this is the best they can do? It sounds like Verrilli thinks either of these conditions would be sufficient to justify congressional action:
1) Congress creates a "comprehensive scheme" and finds that people are behaving in ways that interfere with it. It sets agricultural quotas, but a farmer grows more than allowed. It bans marijuana, but a cancer patient grows her own for medical use. It says health insurers must take all comers and charge them all the same rates, but young, healthy people refuse to participate, creating a danger of adverse selection. This does not seem like a limiting principle to me. If anything, it's an expansionary principle, since a regulatory scheme becomes more constitutional as it becomes more intrusive.
2) There's something almost all of us will need at some point, and we're not sure exactly when, but when we do other people will be forced to pick up the tab if we are unable or unwilling to pay. Health care is surely not the only thing that meets those first two requirements (as Chief Justice John Roberts suggested, why not require people to buy cellphones in case of emergencies?), and the third one is contingent on government policy (such as the federal law requiring hospitals to treat people regardless of their ability to pay). Again, this "limiting principle" encourages Congress to interfere in the economy as promiscuously as possible, thereby creating problems that justify further intervention.
The president's lawyers, of course, picked these criteria because they fit the policy he wants to implement, not because they flow ineluctably from the power to "regulate commerce...among the several states." They are designed to be permissive, not restrictive. To come up with something better, you'd need to be genuinely concerned about the prospect of a federal government unmoored from its enumerated powers, and I doubt that danger keeps anyone in the Obama administration up at night.