Although Democrats think their health-care legislationfaces smooth sailing to implementation, there is a rock dead ahead -- a constitutional challenge to the legislation's core. Democrats who assume it is constitutional to make it mandatory for Americans to purchase health insurance should answer some questions:
Would it be constitutional for the government to legislate compulsory calisthenics for all Americans? If not, why not? If it would be, in what sense does the nation still have constitutional, meaning limited, government?
Supporters of the mandate say Congress can impose the legislation under the enumerated power to regulate interstate commerce. Since the New Deal, courts have made this power capacious enough to include regulating intrastate activity that "substantially affects" interstate commerce. Hence Congress could constitutionally ban racial discrimination in "public accommodations" -- restaurants, motels, etc. -- as an impediment to interstate commercial activity.
Opponents of the mandate say: Unless the commerce clause is infinitely elastic -- in which case, Congress can do anything -- it does not authorize Congress to forbid the inactivity of not making a commercial transaction, of not purchasing a product (health insurance) from a private provider.
"Congress can regulate commercial activities in which people choose to engage, but cannot require that they engage in those commercial activities." So says Sen. Orrin Hatch, who also notes that if Congress can mandate particular purchases to help the economy, there was no need forCash for Clunkers: Congress could have ordered people to buy cars (with subsidies, if necessary). Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise Tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?
But if any activity, or inactivity, can be declared to have economic consequences, then anything can be regulated -- or required. Furthermore, judicial review -- and the Constitution itself -- is largely nullified by a doctrine of virtually unlimited judicial deference to Congress's estimates of what is "necessary and proper" for the regulation of commerce.
If Congress does something beyond its constitutional powers, that something does not become constitutional merely by Congress saying it is necessary for this or that.