The Power to Mandate Health Insurance Is the Power to Mandate Almost Anything
By Jacob Sullum
Opponents of the federal law requiring Americans to buy government-approved medical coverage face a daunting challenge. Because the U.S. Supreme Court has treated the power to “regulate Commerce … among the several States” like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think.
But as last Friday’s decision by the U.S. Court of Appeals for the 11th Circuit illustrated, the law’s defenders have a corresponding problem. Because a limitless “commerce clause” contradicts a fundamental constitutional principle, they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far, they have been unable to do so, which is the main reason the appeals court rejected this “wholly novel and potentially unbounded assertion of congressional authority.”