On Thursday, U.S. District Court Judge George Steeh ruled that it is constitutional for Congress to make people purchase health insurance--the "individual mandate" in the health care law. The judge was working, specifically, off the Commerce Clause of the U.S. Constitution, which gives Congress the power to regulate interstate commerce. He decided that whether or not a person purchases health insurance does wind up affecting interstate commerce, and thus can be dealt with at the federal level. The debate, as people react to the ruling, centers on this question: just how much did the judge expand the powers of the government with this interpretation?
- The Basic Explanation The problem the judge had to resolve is "that Congress is trying to regulate persons who are not engaging in any economic activity," writes law professor and blogger Ann Althouse. He does it by declaring that "everyone is already in the market simply by virtue of having a body which might require medical care ... If you are planning to pay out of pocket for your own medical expenses if and when they arise, you have, through that decision, done something that affected the health care market." Or, as Hot Air's Allahpundit further explains, "we're all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they're required and none of us will be denied essential services if we can't pay."
- The Frightening Explanation The takeaway from the ruling is that "if it's an economic decision, the federal government can make it for you," says Reason's Peter Suderman. Allahpundit dissents:
That's not quite what the court is saying--it's more like "because you'll eventually decide to avail yourself of life-and-death services that can't be refused you, the federal government can make you help pay for them."
- The Extra-Frightening Explanation There are some concerning implications, however. As law professor Ilya Somin
explains, "the opinion ... claims that the Commerce Clause covers
'economic decision' as well as 'economic activity'"--the earlier phrase
applied. Furthermore, the judge is saying that "economic decisions"
include decisions not to engage in certain activities. That
could cover nearly anything, says Somin. "If I choose to spend an hour
sleeping, I necessarily choose not to spend that time working or buying products of some kind."
- And What It Means Radley Balko is appalled. Congress is constitutionally granted a certain set of powers, but "if that set of powers includes everything you do (see Wickard and Raich), and everything you don't do (what Obamacare proponents are advocating here), what's the point in having a Constitution at all?" For Allahpundit, it comes down to this:
If we're all necessarily "active" in health-care commerce at all times, theoretically there’s no limit to what sort of further activity can be mandated in the interest of spreading costs. Can the overweight man or woman be forced to diet because he/she is more likely to need medical services? ... Simple question: What’s the limiting principle on this decision? Would the feds be barred from penalizing people for failing to maintain, say, a certain BMI target because of the right of privacy or bodily autonomy, etc? Or would they not be barred at all? Where does this end?
- Why This, Nevertheless, Isn't that Revolutionary a Decision "The worst part?" says Allahpundit:
"This really is well in line with the Supreme Court's ridiculously
expansive Commerce Clause jurisprudence. You can't opt out of
interstate marijuana commerce by growing and using your own at home, so
why should you be able to opt out of interstate health insurance
commerce when you’re bound to use medical facilities somewhere at some
- A Reminder as We Consider Implications As the Los Angeles Times' Jon Healey points out, "clearly, there will be much more ink spilled on the legal questions raised by the new healthcare law. Still, this round clearly goes to the administration." The American Spectator's Philip Klein adds that"opponents of the law may have a lot better chance of prevailing in the two other major suits, one brought by Virginia and the other one led by Florida and involving 20 states." He is also quick to note that this judge was a "Clinton appointee."