A Threat of Giving Free Rein to Federal Power

Ilya Somin is a professor at George Mason University School of Law. He has written an amicus brief urging the court to strike down the health care law.

Updated July 1, 2015, 7:48 PM

The individual health insurance mandate case raises momentous issues about the limits of federal power. As James Madison put it, the Constitution does not give the federal government “an indefinite supremacy over all persons and things.” If the court upholds the mandate, that principle will be undermined.

The commerce clause gives Congress authority to regulate interstate commerce. Failure to purchase health insurance is not commerce, interstate or otherwise. Since the 1930s, Supreme Court decisions have interpreted the clause broadly. But every previous case expanding the commerce power involved some sort of “economic activity,” such as operating a business or consuming.

If Congress could use the clause to regulate failure to purchase insurance merely because that choice has economic effects, there would be no structural limits to its power. Any decision to do or not do anything is necessarily a decision not to use the same time and effort to engage in economic activity. If I spend an hour sleeping, I thereby choose not to spend it working.

If Congress can regulate the failure to purchase insurance, there would be no limits to its power.

The federal government claims that this is a special case because everyone eventually uses health care. But this argument relies on shifting the focus from health insurance to health care. A similar ploy can justify any other mandate, including even the much-discussed "broccoli purchase mandate." Not everyone eats broccoli. But everyone surely participates in the market for food.

Many also argue that health insurance is special because producers are sometimes required to give free services to the uninsured. But why is this fact relevant to Congress’ commerce power? The usual answer is that failure to purchase insurance thereby has adverse economic effects on producers. But any time someone fails to purchase any product, producer profits are lower than they would be otherwise.

The government’s other justifications for the mandate are also essentially rationales for unlimited federal power.

The danger created by giving Congress a blank check for mandates isn’t just theoretical. Many industries could lobby for laws requiring people to purchase their products.

A unanimous Supreme Court recently emphasized that constitutional constraints on federal power protect “the liberty of the individual.” That protection will be gutted if the justices uphold the individual mandate.