Tomorrow in Atlanta the 11th Circuit Court of Appeals will hear oral arguments in one of the legal challenges brought against the Patient Protection and Affordable Care Act's requirement that all Americans purchase or secure health insurance. At The Washington Examiner, Georgetown law professor Randy Barnett—one of the intellectual architects of the case against ObamaCare—observes that the government has now trotted out three different arguments in defense of the individual mandate, none of which actually imposes any real limit on congressional power:
In the 4th Circuit in Richmond, the government contended that Congress was limited to imposing mandates with regard to issues of truly national, as opposed to local, concern.
While this distinction is found in a 1942 case, it has never been adopted as a rule of law to be enforced by the courts. Nor will it be. Courts are never going to assess whether a problem is "truly" national or "truly" local, because they are incapable of drawing any such line in a principled fashion.
Instead they will defer, as they typically do, to the assessment of Congress that a particular problem is of national concern.
In the 6th Circuit last week in Cincinnati, the government offered a different limit: As the Supreme Court held in 1995, Congress may not regulate wholly intrastate noneconomic activity.
But this principle does not provide any meaningful limits on the use of economic mandates. If an economic mandate is allowed in this case because Congress has a "rational basis" for believing it is essential to its economic regulatory scheme, then mandates will forever be available whenever Congress enacts a scheme of economic regulation under its commerce power.
Read the whole thing here. In the video below, Reason.tv explains the Commerce Clause debate at the heart of the case.