Don't Buy It

By Jacob Sullum (Archive) · Wednesday, March 24, 2010

A few weeks before Congress passed a law that orders every American to buy health insurance, the Virginia legislature passed a law that says "no resident of this Commonwealth ... shall be required to obtain or maintain a policy of individual insurance coverage."

Two weeks later, Idaho's governor signed a law that declares "every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty."

Supporters of ObamaCare say such legislation, which more than 30 other states are considering, has no force, since the Constitution makes congressional enactments "the supreme law of the land." But that is true only when federal laws are authorized by the Constitution, and the individual health insurance mandate is not.

The mandate's defenders say Congress is exercising its power to "regulate commerce ... among the several states." Yet a law that compels people to engage in an intrastate transaction plainly does not fit within the original understanding of the Commerce Clause, which was aimed at facilitating the interstate exchange of goods by removing internal trade barriers.

Even a Commerce Clause stretched by seven decades of deferential Supreme Court rulings is not wide enough to cover the failure to buy insurance, a non-economic inactivity. The two cases that led to the Court's broadest readings of the Commerce Clause both involved production of a fungible commodity for which there was an interstate market regulated by Congress.

In the first case, decided in 1942, the Court ruled that a farmer could be penalized for exceeding federal crop limits aimed at controlling supply and boosting prices even though all of the extra wheat he grew was consumed on his farm. The Court reasoned that homegrown wheat "exerts a substantial economic effect on interstate commerce" by reducing the total amount of wheat sold.

In the second case, decided in 2005, the Court ruled that Congress could ban homegrown marijuana used for medical purposes authorized by state law. Although the marijuana, like the wheat, was never sold and never left the state, the Court said, its production undercut the federal government's attempt "to control the supply and demand of controlled substances in both lawful and unlawful drug markets."

Unlike growing wheat or marijuana, the decision not to buy medical insurance does not produce anything, let alone a commodity traded between states. Maybe so, say ObamaCare's defenders, but that decision has an impact on the demand for insurance and on the health care market (one-sixth of the economy!), which the federal government is trying to control in the same way that it tries to control the marijuana trade (with similar prospects of success).

This sort of reasoning leaves nothing beyond the reach of Congress, since anything you do (or don't do) can be said to affect interstate commerce. In its 1995 decision overturning a federal ban on possessing guns near schools, the Supreme Court cautioned against the temptation "to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." That kind of analysis, the Court warned, threatens to "obliterate the distinction between what is national and what is local."

In a recent Heritage Foundation paper, Georgetown University law professor Randy Barnett and two co-authors note that the decision upholding wheat quotas does not mean "Congress can require every American to buy boxes of Shredded Wheat cereal on the grounds that, by not buying wheat cereal, non-consumers were adversely affecting the regulated wheat market."

Likewise, federal regulation of carmakers does not mean "Congress could constitutionally require every American to buy a new Chevy Impala every year."

Yet this is the logic of the health insurance mandate, an unprecedented attempt to punish people for the offense of living in the United States without buying something the federal government thinks they should have. Don't buy it.

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