In the wake of U.S. District Judge Henry Hudson's ruling yesterday that compelling people to buy health insurance is unconstitutional, defenders of the Patient Protection and Affordable Care Act (i.e., ObamaCare) are fond of pulling out car insurance mandates. If the state can force you to buy car insurance, the argument goes, how can it not be able to make you buy something so much more important, like health or medical insurance?
To wit, this piece in Mother Jones by Nick Baumann about the state of Virginia's successful (so far!) challenge to the mandate:
In the state of Virginia (ahem), for example, drivers who refuse to purchase auto insurance have to pay the state $500 a year. In making this claim, Hudson has "rewritten the Commerce Clause," Tim Jost, a professor at Washington and Lee University law school,told reporters on Monday….
Should the feds be able to require people to buy insurance for health care, a universally used good that society is expected to (and does) provide? Or does the Congress of the United States have less power to regulate health care than the Legislature of the Commonwealth of Virginia has to regulate who pays to fix your Jetta after a fender-bender?
Baumann notes that a couple of other federal judges have upheld the mandate and that the case will certainly reach the Supreme Court. But he frets that the "conservative" majority may reject an expansive reading of the Commerce Clause that "allows Congress to regulate economic decisions, not just economic activity." Which, to be honest, puts us in the realm of a Rush song, fer crying out loud.
(Sidebar: Based on the court's ruling in the medical marijuana case Gonzales v. Raich case, in which the Supes ruled that non-commercial, homegrown marijuana affected interstate commerce and was thus subject to government oversight, Baumann might rest easy.)
He further worries that Hudson's ruling "shows how the court could neuter the entire federal government" and blood the path to the "slippery slope to the libertarian paradise" of, well, you know, limited government. And that can only lead to child labor, 25-hour workdays, non-mandatory calisthenics, and a whole host of awfulness not seem since the dreaded Lochner ruling in 1905, one of the most misunderstood decisions in SCOTUS history.
More pressing, is Baumann's analogy between auto and health insurance illuminating? In a word, no. As John Eastman of Chapman University notes in the video below, "The act of driving is not a constitutional right, it's a privilege, and so we can impose conditions on the exercise of that privilege under the state's police power. Living is not a privilege, it's a right, and I can't impose a condition on the mere act of living, which is what the ObamaCare mandate does."
Watch this video, featuring law profs Erwin Chemerinsky of UC-Irvine and Eastman, which carefully presents the thinking behind broader and narrower interpretations of the Commerce Clause as they relate to ObamaCare and government generally. Who you gonna side with? It's about 10 minutes and worth every second.