One of the key arguments in the health care reform case is whether the individual mandate to buy health insurance has a “limiting principle” — that is, if the government has that power, can’t it also force you to buy almost anything else? And this argument isn’t necessarily without merit, but as Akhil Reed Amar — in my opinion, one of the most brilliant legal scholars in the country — points out, this is true of nearly every other government power as well.
EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.
ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.
The analogy of the power to tax is an excellent one. The fact that an exercise of government power could theoretically include some draconian policies does not mean that the government shouldn’t have that power at all. The Constitution gives Congress the power to regulate interstate commerce; one could come up with all kinds of crazy things they might do within the scope of that power, but that doesn’t mean they shouldn’t have the power in the first place.
The limits of the interstate power clause are a serious question, one that could potentially affect all kinds of policy questions. Let’s take two of the most prominent cases in history, Wickard v Filburn and Raich v Gonzales. In Wickard, the court ruled that the government could tell a farmer how much wheat he could grow because, even if that wheat is used solely for personal use, it has an effect on interstate commerce because it affects the amount of wheat the farmer might have to buy on the open market.
In Raich, the court ruled that federal anti-drug laws took precedence over California’s medical marijuana laws because Congress has the power to regulate interstate commerce — even though, under that law, the marijuana is neither interstate nor commerce, and again because of this idea that even marijuana grown for personal use allows one to not participate in potential interstate commerce.
I think both of those cases were wrongly decided. But the health insurance market doesn’t merely have an indirect effect on interstate commerce, it is interstate commerce. The insurance companies do business in all states and the insurance is used in multiple states, as when someone travels out of their own state and gets sick and must go to a doctor in another. So the regulation of that market, it seems to me, falls pretty clearly within the interstate commerce authority granted to Congress. And because the individual mandate is enforced solely through the tax code, it seems to clearly fall within Congress’ power to tax as well, both of which are explicitly spelled out in Article 1.