One of the key legal arguments in the various ObamaCare lawsuits concerns the “individual mandate.” Can Congress require citizens to buy a good or service under its Commerce Clause power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”? Does the specific decision not to purchase health insurance constitute an “economic activity” that Congress can regulate?
This week, we got an answer from U.S. District Judge Gladys Kessler that contradicts the determination made last month by U.S. District Judge Roger Vinson. While the Supreme Court may not directly compare the two judges’ respective reasonings when it eventually decides the fate of the health-reform law — and I’ll note again that the “score” on the district- or appeals-court level doesn’t matter in the end — I think the following passages get to the heart of the conflict.
First, Kessler’s conclusion, which pretty well tracks the Obama administration’s argument:
It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
Now, what Vinson had to say about this argument:
If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [the quote comes from the Supreme Court's Lopez ruling], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. … In Lopez, the Supreme Court struck down the Gun Free School Zones Act of 1990 after stating that, if the statute were to be upheld, “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” If some type of already-existing activity or undertaking were not considered to be a prerequisite to the exercise of commerce power, we would go beyond the concern articulated in Lopez for it would be virtually impossible to posit anything that Congress would be without power to regulate. (emphases original to the Vinson ruling)
I know it is difficult to do so, given the attention we’ve all paid to the health-reform debate, but try for a moment to imagine that these arguments were being made about a different law — one in which the federal government required every citizen to purchase, say, a gym membership in order to keep themselves in better health, on the grounds that this will lead to less obesity and thus lower health-care costs across the nation.
In that case, which of these arguments would be more in line with the Constitution?
– By Kyle Wingfield
Tweet this blog post: Tweet