Adler on the constitutionality of an individual mandate to purchase health care

This is a topic we will likely be reading about for some time to come.  The question is whether or not the federal government has the right to force all Americans to buy health insurance and penalize them if they choose not to do so.  As is often the case, the argument in favor of the federal government having this power falls on the wide reaching commerce clause of the US Constitution.

Jonathan Adler of the Volokh Conspiracy addresses the slippery slope of the commerce clause:

In my view, the biggest problem with the argument for the constitutionality of an individual mandate is that it is an argument without limit.  Basically, the argument is that if Congress can regulate economic activity X, then it can also mandate that each and every American engage in economic activity X.  If this is true for health care, there is no reason why it is not also true for Christmas trees, savings bonds, or GM cars.  In short, Congress could mandate universal participation in any economic activity and mandate the purchase of any product or service it chooses, so long as it does so as part of a broader regulatory scheme.

While some of the language in the majority opinion and Justice Scalia’s concurrence in Raich implies Congress has such power, this approach would create a commerce power without limit, an outcome which both Lopez and Morrison said was incompatible with the concept of enumerated powers. so to embrace this view, as I argued in this article, is to eviscerate their holdings.  As I believe Lopez and Morrison are more consistent with the text of the Commerce Clause and the principles of enumerated powers, I would prefer that the Supreme Court uphold these decisions and overturn or severely limit Gonzales v. Raich, Wickard v. Filburn, and a few others.

I encourage you to read the rest of Mr. Adler’s article at the Volokh Conspiracy.  For those of us that are not constitutional lawyers, it provides a nice understanding of the basic arguments and issues related to a federal mandate to purchase health insurance.