Jacob Sullum

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.

Sean Hannity FREE

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 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."

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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