Constitutional justification for the individual mandate?

My search for a robust pro-C case for Obamacare hasn’t borne much fruit, but I did find this in the Baltimore Sun.  Meh.  A pretty thin gruel unless you’re already predisposed to every next “logical” extension of broad Federal power under the Commerce Clause (or, if needed, the “Necessary and Proper” clause).  Here’s a great summary of the relevant Commerce Clause cases.

Conservative objections to the law, broadly speaking, are that it crosses the Rubicon.  It’s an affront to individual liberty and mortally wounds the federal structure of our laws.  (Which itself is a key component of the checks & balances that safeguard liberty…)  In other words: what is the limiting principle to check or balance these new powers we grant the Federal government?

The authors (link above, excerpt below) offer this:  “affecting commerce that states are ill-suited to solve on their own.”

This is a variation on the “race to the bottom” argument. The states with “low” regulation (bad!) will prosper at the expense of states with “high” regulation (good!). Should a state choose to regulate its insurance market in a way that an insurer finds too hostile, that business can leave the state.  Should a state choose to mandate extra coverage for insureds, it may become a magnet for insureds who need the coverage. Those states with the more “liberal” sensibilities might end up with more sick people, and fewer insurers, than those states with more “conservative” sensibilities.

The problem is Americans don’t agree on what “the bottom” is on many social policies, including healthcare.  What is the proper amount of coverage for plastic surgery? Eating disorders?  Chiropractic? Acupuncture? Psychotherapy?  Abortaficients?  Must a single man pay for a policy that includes pre-natal care and breast cancer screenings?  Must non-smokers pay the same premiums as smokers?  Can I buy a high-deductible policy and pay more out-of-pocket if I wish?

Our 50 states differ with respect to policies to attract high-tech industry, tax income, own firearms; to provide welfare and unemployment benefits, as well as public education; and, in what might be most analogous to health care – to govern workers compensation.

I prefer the competition among the states to come up with “wise” or “optimalregulations. As laboratories of democracy the states can each experiment with laws and taxes to achieve the desired public policy outcomes for their citizens, and in the process keep power dispersed – those checks & balances, again. The added benefit:  we all get to live in regions of the country more to our liking.

From Individual mandate is constitutional by Leslie Meltzer Henry and Maxwell L. Stearns

Leaving the problem of the uninsured to state regulation risked a separating (rather than a pooling) outcome in which high-regulation states drive out insurers but attract high-risk individuals, and low-regulation states attract insurers to cover those willing and able to pay.

The Supreme Court has recognized the need for broad Commerce Clause powers to advance national interests and has relied on the Commerce Clause to strike down state laws that thwart national interests… The landmark 1942 decision Wickard v. Filburn, which involved a federal law using fines to limit how much wheat farmers could grow, permitted Congress to regulate activity, “whatever its nature … if it has a substantial economic effect on interstate commerce.” The purpose was to stabilize wheat prices during the Depression by limiting production. Acting on their own, states would allow more production, benefiting their farmers while driving prices down. Like the ACA, only federal regulation, coupled with a strong enforcement signal — sustaining the fine against a small-scale farmer — could solve this problem.

Some claim that the Wickard and Lopez formulations prevent Congress from regulating “inactivity,” including not buying insurance. However, past Supreme Court decisions have sustained, under the Commerce Clause, federal statutes regulating so called inactivity. Moreover, not buying insurance constitutes “activity” because it is a decision to self-insure or impose costs on others.

This is why arguments that sustaining the individual mandate would give Congress limitless power ring hollow. Whether the federal statute speaks to action or inaction, permissible Commerce Clause regulation requires an economic concern substantially affecting commerce that states cannot resolve on their own.

Striking down the individual mandate would introduce a new and deeply problematic chapter in the history of the Commerce Clause. For the first time since the New Deal, Congress would no longer hold a vital power of national concern, namely, the authority to regulate all economic subject matter substantially affecting commerce.


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