The Problem With Broad Definitions
Updated December 14, 2010, 11:29 AM
Ilya Somin is an associate professor at George Mason University School of Law. He wrote an amicus brief in the Virginia case on behalf of the Washington Legal Foundation and a group of constitutional law scholars.
Judge Henry Hudson’s decision today struck down as unconstitutional the “individual mandate” included in the health care bill enacted earlier this year; the mandate requires most Americans to purchase government-approved health insurance plans by 2014. The most powerful parts of Judge Hudson’s ruling reject the federal government’s arguments claiming that the mandate is justified by Congress’ powers to impose taxes and regulate interstate commerce.
The text of the Commerce Clause gives Congress authority to regulate interstate commerce. But the individual mandate regulates that which is neither commercial nor interstate. Virtually all purchases of health insurance are intrastate because a combination of state and federal law makes it illegal to purchase health insurance across state lines. Moreover, the object of the mandate isn't even commerce at all. Instead of regulating pre-existing commerce, the bill forces people to engage in commercial transactions they would have otherwise avoided.
Supreme Court decisions have expanded Congress' Commerce Clause authority to cover virtually any “economic activity.” But the insurance mandate goes well beyond this. Far from engaging in “economic activity,” people who decide not to purchase health insurance are actually refraining from doing so.
The federal government claims that forcing people to purchase health insurance regulates economic activity because everyone eventually uses health care in some form. But as Judge Hudson points out, “the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation.” The same reasoning would give Congress the power to force everyone to purchase a car because everyone eventually uses some form of “transportation.”
Judge Hudson is equally persuasive in rejecting the argument that the mandate is authorized by Congress’ power to impose taxes. As he notes, it is actually a financial penalty for refusing to comply with a regulation. In September 2009, President Obama himself stated that “to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse.
Upholding the individual mandate would give Congress virtually unlimited power to mandate anything it wants. As Judge Hudson recognized, such an outcome is both dangerous and unconstitutional.
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