Does Congress have the power to regulate individual "economic decisions" even if those decisions involve no identifiable activity? The three Democratic judges who heard arguments in two constitutional challenges to ObamaCare's individual mandate today seem to think the answer to that question is, "Well of course it does!" You can listen to the entire audio of this morning's arguments online, but the short version is that, as expected, things don't seem to have gone very well for the challengers. Damon Root already linked to the handy summary by Cato's Ilya Shapiro, which notes the following:
The government is understandably unconcerned with articulating a principled limit on its own power, and this particular panel of judges may find some way to avoid dealing with the activity/inactivity conundrum.
At The Examiner, Philip Klein has a lengthier and less optimistic write-up of the courtroom back-and-forth. It seems that the Obama administration is once again arguing that it doesn't actually matter if someone does not purchase health insurance because virtually everyone is already a participant in the health care market simply by virtue of being alive:
When Neal Kumar Katyal, acting solicitor general for the Obama administration, addressed the panel, the judges seemed much more sympathetic to his arguments.
Katyal argued that the the activity being regulated was "participation in the health care market" which he described as a virtually "universal feature of human existence." Thus, they were only regulating the financing of health care, since ultimately everybody will purchase it.
The government is "not asking people to buy something they otherwise might not buy," Katyal said. He said the distinction between health care and insurance was "artificial."
So mandating that everyone in the country purchase health insurance or pay a fine isn't actually requiring any person to purchase something they wouldn't otherwise buy? Sure. OK. Granted, Katyal did say the mandate wasn't "asking" anyone to buy something. And that's true! The mandate isn't a request. It's a requirement.
The argument, I gather, is that the individual in question would presumably be participating in the health care market at some point anyway. One problem with this argument is that it sweeps in absolutely everyone, no exceptions. It also raises the by-now-familiar question: If a health insurance mandate is legal because virtually everyone will eventually purchase some sort of health care, then would a broccoli mandate be legal because virtually everyone will participate in food markets? It's not a trick question, but it is one I think the mandate's supporters should have to answer, if only to see who's willing to stand by the ultimate logic of the argument. The Obama administration's lawyers have so far dodged the question by saying it's not applicable because health insurance is a "financing mechanism" and not a truck, a vegetable, or shoes. But Harvard Law professor Charles Fried, who believes the mandate is obviously constitutional, says the answer to the broccoli question is yes! If the administration wants the power to mandate the purchase of broccoli, then it should say so too.