You Don't Actually Have to Be Engaged In Commerce For Your Choices to Be Regulated Under the Commerce Clause


According to a federal judge in Virginia, ObamaCare's individual mandate to purchase health insurance is constitutional under the Commerce Clause because, under precedents set by previous cases, "Congress has broad power to regulate purely local matters that have substantial economic effects, even where the regulated individuals claim not to participate in interstate commerce." The ruling, which was released yesterday, dismissed an argument by Liberty University, a Christian school based in the state, that the law should be invalidated because, among other reasons, it unconstitutionally requires individuals to purchase health insurance.

The section of the decision dealing with the mandate leans heavily on the Supreme Court's ruling in Gonzales v. Raich, a case in which the Court decided that, under the Commerce Clause, Congress could criminalize growing marijuana at home for personal use because failure to do so would upend a legitimate regulatory activity. Yesterday's ruling by Judge Norman K. Moon quotes Raich to argue that Congress may regulate "purely intrastate activity that is not itself 'commercial'…if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

What about the argument that refusing to purchase insurance is not activity, but inactivity, and therefore not within Congressional authority to regulate? Judge Moon didn't buy that either. Cases in which the Supreme Court has ruled that Commerce Clause does not grant authority to regulate—like the 1990 case in which the Court invalidated a law criminalizing possession of a gun near a school—have dealt with attempts to regulate activities that were not highly commercial in nature or effect. The gun ban was not "an essential part of a larger regulation of economic activity," and therefore not constitutionally justified.

But the ripple effects of a declining health insurance mean that, for the purposes of determining regulatory authority, it is a commercial activity with economic effects, and therefore Congress can regulate it. The focus here is on the "economic" part of the phrase "economic activity."

All in all, it's a tidy recipe for rapid regulatory expansion: If one sort of economic regulation is acceptable, then so are additional regulations required to make the initial regulation work.

More on the Commerce Clause and the individual mandate here and here