Supreme Court should strike ObamaCare mandate

On Tuesday, March 27, the U.S. Supreme Court will hear arguments on the most controversial part of ObamaCare: the “individual mandate,” which requires that everyone not otherwise covered purchase government-approved health insurance. The government claims that the individual mandate is constitutional because it falls under Congress’s power to regulate interstate commerce. In an amicus brief filed by the...

On Tuesday, March 27, the U.S. Supreme Court will hear arguments on the most controversial part of ObamaCare: the “individual mandate,” which requires that everyone not otherwise covered purchase government-approved health insurance.

The government claims that the individual mandate is constitutional because it falls under Congress’s power to regulate interstate commerce. In an amicus brief filed by the Illinois Policy Institute and like-minded organizations across the country, we argue that the law is far outside Congress’s constitutional authority and must be struck down.

Supreme Court decisions since the New Deal era have held that the Commerce Clause allows Congress to regulate virtually any human activity that affects commerce.  For example, in the notorious case of Wickard v.  Filburn (1942), the Court decided that the federal government could penalize a farmer for growing wheat on his own land for his own personal use.Because Mr. Filburn grew his own wheat, he would buy less wheat from others, so the Court concluded that his actions affected the national market for wheat and were therefore subject to federal regulation.

Wickard was a gross abuse of the Commerce Clause.As Professor Randy Barnett has shown, in the founding era, “commerce” only referred to shipping and trade, and “regulate” meant “to make regular” – that is, to specify how an activity related to trade and shipping may be done.  The Commerce Clause was never meant to allow regulation of all economic activity – but in the years since Wickard, that’s essentially what the Supreme Court has said.

Even so, the ObamaCare case is different from all cases that have come before, and the individual mandate should be struck down even if we accept (for the sake of argument) the Supreme Court’s decades of liberal precedents. Here, the government isn’t punishing an activity (like growing wheat); it’s punishing inactivity  – people’s decision not to buy health insurance. The Supreme Court has never said that this is within Congress’s power.

In a sense, it’s true that people who decide not to buy insurance “affect” commerce: The markets for insurance and health care look at least slightly different than they would if those people decided to buy it.

The trouble is, if we accept that reasoning, it follows that Congress can force us to do virtually anything. When we choose to do a particular activity, we implicitly choose not to do the infinite other things we could be doing instead. By choosing not to do those things, we are, by the government’s logic, “affecting” commerce. And, by the government’s logic, the Commerce Clause gives Congress the power to force us to do any of those countless things we are choosing not to do. That means the government could force us to buy Chevy Volts or gym memberships, or could even force us to eat the foods it thinks are best.

That can’t be right. The Constitution’s framers intended the federal government to be one of limited, enumerated powers. If they had wanted to create the unlimited government that the Obama Administration seeks, the framers wouldn’t have given Congress just 18 specific powers, and they wouldn’t have made clear in the Tenth Amendment that all other governmental powers belong to the states.

So the ObamaCare case is important not just because of the huge harm the law would cause to people across Illinois and the nation; it’s important because the Court will have to decide whether the federal government will have any limits at all on its power in the 21st century.