The Milwaukee Chapter of the Federalist Society sponsored an interesting talk this past Monday by David Rivkin, a parter with the firm of Baker & Hostetler in DC.
Rivkin's argues that a Congressionally enacted mandate that individuals purchase health insurance would be unconstitutional, i.e., it would be outside the scope of Congress' authority to regulate commerce among the states. As a prescriptive matter, he is certainly right. Descriptively (i.e., would the Court so rule), its not as clear as Rivkin himself concedes.
Nancy Pelosi claims that Congress has an "essentially unlimited" power to regulate health care. This is an extraordinary claim and based on a view of the Commerce authority that says Congress may regulate any local activity if an effect on interstate commerce can be hypothesized.
That is not, however, quite what current doctrine holds. There are certainly cases in which the the Court has upheld Congressional regulation based on a fairly tenuous connection with interstate commerce. In Gonzales v. Raich, for example, the Court held that Congress could prohibit persons from growing marijuana at home for personal use because it is an "economic activity" that, by altering demand, affects the national marijuana market.
But, in two other reason cases, United States v. Lopez and United States v. Morrison, the Court held that Congress could not regulate certain local activities (carrying guns on or near school property and violent acts against women) that are not themselves economic even thought they certainly have an impact on the national economy.
I am not sure that this is a very useful distinction, but let's assume that it - or something like it - is the principle to be applied. Is purchasing insurance economic because it affects demand for a product or is it noneconomic in that it is not an occupation or business or a private activity that - in some sense - substitues for the services or goods provided by an occupation or business? (Or does it by being a form of self insurance?)
The ramifications of permitting Congress to mandate the individual purchase of insurance are matters of concern. As Rivkin puts it, to permit such a mandate, is tantamount to - or uncomfortably close to - the notion that Congress can regulate you because you are "there" and "being there" will necessarily cause an economic footprint that will affect - in some way - interstate markets.
If that is enough to permit Congressional regulation, then why couldn't Congress mandate that everyone join a health club or purchase vegetables or not purchase junk food?
The problem, it seems to me, stems from the Court's use of the Commerce Clause to permit Congress to do things that it is not constitutionally empowered to do. Enacting national health care is an effort to regulate the provision of health care and not commerce among the states (although it will have an impact on that commerce). Once we admit that impact on commerce justifies Congressional regulation, the idea of Congress as a body with limited and enumerated powers begins to fall apart.