The constitution and the mandate

I wonder, is this issue going to get traction? Cato's Robert Levy and Michael Cannon argue that the health insurance mandate is unconstitutional. It does seem to cross a commerce-clause line: yet another line, in fact, since so many have been crossed already. The question is whether the government can force you to buy something you don't want. You have to buy car insurance, you say? Well, not really, since nobody forces you to buy a car (though try living in the US without one). The health insurance mandate forces you to buy a service, and all you have to do to fall under its power is exist.

The individual mandate would extend the dominion of the federal government to virtually all manner of human conduct - including the non-conduct of not buying health insurance - by establishing a federal police power that is authorized nowhere in the Constitution. Democrats will have legislated a new quasi-crime, and perhaps the sole offense in our history that can be committed only by people of a certain income, since those below the poverty line would be exempt from the mandate.

Congress' attempt to punish a non-act that harms no one is an intolerable affront to the Constitution, liberty, and personal autonomy. That shameful fact cannot be altered by calling it health-care reform.

I find Stuart Taylor's take more to my taste, though more tentative than I might have expected. He concedes that the constitutionality of the mandate is highly questionable; he agrees with Levy and Cannon that the Supreme Court will uphold it; but unlike them he thinks that upholding it is the right (meaning pragmatic) thing to do. It's a matter of "the justices' undoubted [and proper, in Stuart's view] sensitivity to public opinion and political considerations".

It's true that the proposed mandate, like much else that Congress has done since the New Deal, would extend federal powers far beyond anything envisioned by the Framers. The commerce clause, in particular, was not intended to allow Congress to regulate activities that were neither interstate nor commercial.

But the need to govern an ever-more-interconnected nation, in which once-local activities such as health care have become critical components of the national economy, has spawned a long line of precedents expanding the commerce power, especially since the justices began upholding New Deal programs in 1937.

On this and other issues, the Court must often choose whether to be faithful to a literal interpretation of the Constitution's original meaning or to the hundreds of precedents that -- sometimes for good policy reasons, sometimes not -- have stretched or departed from it.

It's a shame that the strongest precedents for upholding the mandate's constitutionality include, in Stuart's view, a decision I very much object to: a 2005 ruling that Congress can make it a federal crime for Californians to grow marijuana for their personal, medical use, even though California law allows it. But if the commerce clause can stretch to that, it can stretch to anything.