The Harvard professor is trying to confuse issues, namely consumption of health care with the choice not to consume health insurance. This distinction between consumption and a choice not to consume is one that has not been dealt with in any manner (that I can think of) by the Supreme Court. The Harvard professor would like us to believe that what the legislation really is doing is regulating the actual HEALTH CARE as opposed to regulating the DECISION whether to purchase insurance.
Up until this point, the outer edge of the commerce clause was defined by either Wickard v. Filburn or Raich v. Gonzales. These cases involved an individual growing something for their personal consumption - in Wickard it was wheat and in Raich it was weed. In both cases, the actions of the grower was restricted by federal law claiming authority under the commerce clause of the constitution. In both cases, the Supreme Court found that these acts of individual production were interstate commerce that could be reached by power granted under the commerce clause as such actions, if taken by a large number of growers, would have an impact on the actual amount of goods transported between the states.
Both of these cases are generally viewed as defining the outer limit of the power of the commerce clause.
In all fairness to the opposition, Wickard could pose problems for our side as there are some very unfortunate statements in it, such as:
“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct’ or `indirect.’”
However, even with this unfortunate statement, the facts of Wickard and Raich are still significantly different from that of the present case in that they were regulating positive participation in commerce as opposed to the decision as to not participate. In many ways, the facts of this case are closer to those of United States v. Lopez which dealt with a gun ban in school zones and forbade the mere possession of a firearm within these zones.
Noting that mere possession is not commerce and that such an interpretation would destroy the federal system established in the constitution, the Supreme Court struck down the law. The current situation is similar to that of Lopez in that the arguments for the nexus to interstate commerce both involve potential costs placed upon society by a failure to regulate - in Lopez, the social cost of violence in schools and the resulting lack of learning, and currently the cost of having un- and under-insured individuals who don’t receive treatment. Also, similar to Lopez, the extension of power to the federal government to regulate the decision to consume would upset the balance of power created in the constitution as this would allow the federal government to regulate any decision.
Maybe more importantly, the constitution, according to our liberal friends, protects some central fundamental liberties, among which is our ability to choose. Regardless of the economic impact of a decision, the commerce clause cannot grant the government a power to limit our other freedoms.
As is always the case, the law can go either way. However, sanity screams that allowing the government to regulate a decision not to participate in commerce must be beyond the realm of the commerce clause. If it is not, the government can compel us to by GM cars, to purchase abortions for ourselves, to purchase clean needles in case we develop a heroin habit, and anything else that they decide we need. If the government can do this, the constitution has been destroyed and we no longer have a limited government. In light of this, I cannot imagine any rational justice (meaning Kennedy, Scalia, Thomas, Roberts, or Alito - and maybe even Stevens on a good day) thinking that such a mandate is authorized by the commerce clause.
Your post is tremendous, informative and insightful. Thank you.
It seems as far as the Harvard professor’s comments on the commerce clause, everything hinges on your your description of the distinction between regulating healthcare and purchasing health insurance.
What is frightening in the Harvard’s professor’s comments is that he is from Harvard and possibly does not see the distinction. I would rather think he knows the distinction but is partisan and chooses to obscure it.