Compulsion, the Constitution, & the Mandate for Health Care


Activists outside the Supreme Court during the oral arguments about the constitutionality of the individual mandate.

Today marks the end of three days of oral argument in the Supreme Court that will decide the fate of the Patient Protection and Affordable Care Act (ACA). Among the constitutional items up for debate is the individual mandate, an integral component of  the ACA.

Proponents of the mandate defend its constitutionality on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power “to regulate Commerce … among the several States.” Justice Kennedy, in the opening of the arguments, posed the question: “can you create commerce in order to regulate it?”

Wickard v. Filburn, the Supreme Court case from 1942, set the precedent to recognize the federal government’s authority to regulate economic activity under the Commerce Clause. However, regulating activity is far different that regulating inactivity. If the court rules to uphold the mandate, many scholars believe it will hugely broaden the power of the federal government.

It begs the question, what is the limit to what the government can and cannot regulate?

Randy Barnett, law professor at Georgetown University, has been a champion in the argument against the mandate. He argues that the individual mandate is unnecessary, unconstitutional, unlimited, and downright dangerous:

Until 2010, the only mandates ever imposed on American citizens pertained to their citizenship: register for the draft and serve if called, sit on a jury, file a tax return, respond to the census. In the U.S., one cannot even be commanded to vote.

If economic mandates like this one are allowed, however, Americans will be demoted from citizens to subjects. They will have to obey any commands that Congress deems convenient to its regulation of interstate commerce. No more expensive tax credits and subsidies to raise taxes to pay for; Congress can just command you to buy its favored products. Forget cash for clunkers; just make Americans buy cars from G.M. Or make them undergo medical exams to save on health care costs. Gone will be a federal government of limited and enumerated powers established by the Constitution and repeatedly affirmed by the Supreme Court.