WASHINGTON – When the Supreme Court considers whether Congress has the constitutional power to compel individuals to buy health insurance, the argument supporting Congress may rest on a non sequitur and a semantic fiat. A judge’s recent ruling argues that the insurance mandate must be constitutional because Obamacare would collapse without it. A forthcoming law review article agrees with this and with the judge’s idea that, regarding commerce, being inactive is an activity.

Obamacare does indeed require the mandate: Because the law requires insurance companies to sell coverage to people regardless of their pre-existing conditions, many people might delay buying insurance until they become sick. But is the fact that the mandate is crucial to the law’s functioning dispositive?

U.S. District Judge Gladys Kessler’s ruling that the mandate is constitutional conflates moral, policy and constitutional considerations. She says people who choose “not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free health care which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep.” So “those who choose not to purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face.”

Her disapproval is neither a legal argument nor pertinent to one. The question remains: Does Congress’ power to regulate interstate commerce entitle it to create a health care regime that requires the mandate?

Mark Hall of Wake Forest University, in an article for the University of Pennsylvania Law Review, says there would be constitutional “uncertainty over the mandate in isolation.” But it is “inextricably intertwined” with Obamacare’s “other insurance regulations” – e.g., those pertaining to pre-existing conditions – “which indisputably are constitutional.” So the “strongest defense” of Congress’ power to enact the mandate is “the acknowledged undesirability, if not impossibility” of the regulations regarding pre-existing conditions, absent the mandate.

Hall says the mandate “meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable.” But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X – say, guarantee universal access to insurance – make Y constitutional merely because Y is necessary for doing X?

Congress has the constitutional power to combat political corruption, the “appearance” thereof, and the “circumvention” of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.

The mandate’s defenders note that the Constitution says Congress has the power to “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers, one of which is to regulate interstate commerce. “Necessary and proper.” An unconstitutional law is improper.

Does the mandate acquire derivative constitutionality merely by Congress making the mandate necessary for something Congress wants to do in the exercise of the enumerated power of regulating interstate commerce? If so, what would not acquire such constitutionality?

Madison’s constitutional architecture for limited government will be vitiated unless the court places some limits on what constitutes commerce eligible for regulation. So the question becomes: Is the inactivity of not buying insurance a commercial activity Congress can proscribe because it has economic consequences?

Hall says it is unclear what constitutes “pure inaction.” But virtually nothing qualifies as “pure” inactivity if, as he says, “the passivity of non-purchasing decisions does not rob them of their inherently economic nature.” Judge Kessler disdains the distinction between activity and inactivity as “of little significance.” Her Orwellian theory is that government can regulate the activity – the mental activity – of choosing not to participate in a commercial activity.

Hall perfunctorily says “some limit” on Congress’ commerce power “is necessary” but then says “democratic electoral constraint” – trusting “the political process itself to set limits” – will suffice to restrain government.

The question about the mandate is, however, whether a political institution has traduced constitutional limits placed on it. Because the Framers prudently doubted the sufficiency of “democratic electoral constraint” – because they were wary about “the political process” policing itself – the Constitution was written.

© 2011, Washington Post Writers Group