Jacob Sullum
Opponents of the federal law requiring Americans to buy government-approved medical coverage face a daunting challenge. Because the U.S. Supreme Court has treated the power to "regulate Commerce ... among the several States" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think.

But as last Friday's decision by the U.S. Court of Appeals for the 11th Circuit illustrated, the law's defenders have a corresponding problem. Because a limitless "commerce clause" contradicts a fundamental constitutional principle, they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far, they have been unable to do so, which is the main reason the appeals court rejected this "wholly novel and potentially unbounded assertion of congressional authority."

Under our system of government, the 11th Circuit noted, Congress has only those powers that are explicitly enumerated in the Constitution, with the rest "reserved to the States respectively, or to the people" (as the 10th Amendment puts it). An all-encompassing commerce clause that authorizes any mandate, restriction or prohibition aimed at behavior that might affect interstate commerce (subject to specific limits, such as those imposed by the Bill of Rights) is plainly inconsistent with this federal system.

The Obama administration, therefore, needs to explain why its constitutional rationale for the health insurance mandate -- that the failure to obtain medical coverage, in the aggregate, has a "substantial effect" on interstate commerce -- does not amount to such an open-ended license. Toward that end, the administration argues that health care is unique because it is expensive, everyone needs it at some point yet cannot confidently predict when, and federal law requires hospitals to treat people regardless of their ability to pay, which shifts costs to others.

As the 11th Circuit noted, however, "virtually all forms of insurance entail decisions about timing and planning for unpredictable events with high associated costs." Based on the administration's criteria, "there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks," including natural disasters, accidental death, theft, business interruption, disability, long-term nursing care and burial costs.


Jacob Sullum

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