Mandatory Nonsense

On Wednesday, a federal judge in Michigan heard arguments in a lawsuit challenging the new health care law's "individual mandate"—the requirement that all Americans purchase private health insurance or face a financial penalty. Arguing against the law, attorney Robert Muise reportedly told the judge that "the Constitution limits Congress to what it can impose on individuals. We are here because the Congress violated the U.S. Constitution by forcing individuals to engage in a commercial activity."

At the Michigan Independent, Ed Brayton notes the following in response:

As the DOJ attorney representing the government told the court, such a requirement is not unusual at all. States, including Michigan, routinely require the purchase of auto insurance in order to own a car.

This sounds a lot like the case that Richard Cordray and Tom Miller, attorneys general for Ohio and Iowa, respectively, made back in April: If state governments can mandate the purchase of car insurance, then the federal government ought to be able to mandate the purchase of health insurance. There are a number of serious problems with this argument.

First, there's a big difference between mandating that an individual purchase auto insurance in order to drive a car and requiring an individual to purchase health insurance simply because he or she is alive.

Second, auto-insurance mandates are made by state governments and only apply within state borders. The question for the federal law, as I've argued before, is how the Commerce Clause, which gives Congress the power to regulate interstate commerce, allows Congress to prohibit the decision to not purchase health insurance—something that involves no commercial transaction of any kind, and certainly not a commercial transaction that crosses state lines.

In the end, supporters of the mandate may well win in the courts. But until then, for anyone who wants to debate the provision's legality, seriously grappling with what limits, if any, the Constitution places on congressional power to regulate personal, non-commercial decisions ought to be, well, mandatory.