From The Heritage Foundation:
Obamacare Defenders: Existence Is Commercial Activity
Have you heard the latest legal argument trotted out by the defenders of Obamacare’s individual mandate?
The Constitutional question that’s been presented in about 20 lawsuits is whether the Commerce Clause allows Congress to regulate behavior that is not in any way commercial at all. People who have chosen not to buy health insurance would not seem to be engaged in commerce, and thus would seem to be beyond the reach of Congress’s power to regulate commerce. It’s difficult to justify the contrary position, because that would amount to saying that there are no real constitutional limits to Congress’s powers. If it can regulate inactivity, then Congress can regulate anything.
But here’s what the defenders of the law have come up with: Earlier this month, U.S. District Judge George Caram Steeh dismissed a lawsuit against the individual mandate filed by the Thomas More Law Center. He ruled:
Far from ‘inactivity,’ by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance. … These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.
On Monday, this same argument was made by Deputy Assistant Attorney General Ian Gershegorn in a summary judgment hearing in the case of Virginia v. Sebelius. The problem with this argument, as Jacob Sullum points out, is that the “logic is easily adaptable”:
People who abstain from purchasing a car are making an economic decision to use other modes of transportation, and that choice has an impact on the U.S. automobile industry, which the federal government is committed to saving. People who do not eat vegetables are making an economic decision to consume other foods, and that choice affects the market for health care services as well as interstate commerce in broccoli.
This latest trope, however clever, thus points squarely at the central constitutional question: If not buying a product is commercial activity that can be regulated by Congress, then what can’t Congress regulate?