In my column today, I argue that the failure to buy health insurance does not fall under the federal government's power to regulate interstate commerce, either as it was originally understood or as it has been interpreted by the Supreme Court. In a recent New England Journal of Medicine essay, Yale law professor Jack Balkin disagrees, challenging the claim that uninsured people "are not engaged in any activity that Congress might regulate; they are simply doing nothing":
This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce.
As I suggest in my column, this kind of argument proves too much, since it means that everything people do or don't do potentially qualifies as interstate commerce, once you consider substitution effects, secondary and tertiary consequences, and similar behavior by other people. If sleeping with the windows open or failing to purchase an air filter triggers people's allergies and causes them to "purchase over-the-counter remedies," it affects interstate commerce. By Balkin's logic, Congress therefore could pass a law requiring everyone (or maybe just allergy sufferers) to close their windows at night or purchase air filters. Mandatory calisthenics, which would make the population fitter and thereby reduce health care costs, likewise should qualify as regulating interstate commerce, along with myriad other measures aimed at increasing health-promoting behavior or reducing health-compromising behavior: a national bed time, mandatory tooth brushing, a donut ban, a weight tax, etc.
And these are just the possibilities suggested by the government's interest in health care. Add in the other five-sixths of the economy, and the Commerce Clause swallows pretty much everything, subject to specific limits such as those listed in the Bill of Rights. Hence Congress could not stop us from watching a particular TV show or playing a particular video game (which would violate the First Amendment), but it could prevent us from engaging in such sedentary activities for more than an hour a day in the name of improving our health and boosting our productivity, both of which would have consequences that ripple through the economy and have a cumulative effect on interstate commerce.