The suit against the individual mandate

The editors of the Washington Times have a useful article on the constitutional challenge to the individual mandate that has been launched by 14 states. The piece even discusses Wickard v. Filburn (1942), the mother of all whacky Interstate Commerce Clause cases, which is most often cited by Obamacare advocates as the precedent for the individual mandate. The Supreme Court held in Wickard that Roscoe Filburn could not grow wheat on his farm in excess of the limits set by Congress under the 1938 Agricultural Adjustment Act, even if he was not selling the wheat but only using it to feed his chickens. The Court’s reasoning, as the Times sums it up, was that “if enough farmers like Filburn grew their own chicken feed, they would not buy it, and this would have an impact on commerce nationwide.” The Times points out that as outrageous as the power to regulate economic activity (and even non-economic activity) granted to Congress under Wickard is, it doesn’t come close to the horror of the individual mandate, which doesn’t just regulate economic activity but compels it.

Indeed, if Congress has the power to tell people that they must buy a certain product, then it has power over all economic activity, period. It has the power to tell people what they must buy or not buy. It has the power to tell businesses what they must sell or not sell. It has the power to tell factories what products they must manufacture or not manufacture. It has the power to tell graduate schools what kind of applicants they must admit or not admit—what kind of teachers they must hire or not hire—what kind of academic standards they must set or not set. It has the power to tell individuals what profession they must enter or not enter, what kind of job they must work at or not work at. Because all these acts can be said ultimately to impinge—even if to a homeopathically reduced degree—on interstate commerce.

No statist Western European “democracy” (including our uber PC northern neighbor) has ever claimed over its people the power that the U.S. Congress now claims over the American people. I don’t think even the Soviet government asserted the power to tell people that they must buy a product.

Any conservative pundit or Republican politician who says that there is nothing we can do to reverse Obamacare, who says that we must not fight to repeal Obamacare because that will make the Republican party seem “extreme,” is on the side of the enemy. However, following the manner of Robert E. Lee, I won’t refer to them as the enemy, but as “those people.” As even Dennis Prager (!) said the other day, we are now in a non-violent civil war.

- end of initial entry -

Lydia McGrew writes:

I don’t know if you are aware of the other response (besides the commerce clause response) to the constitutionality challenge against the individual mandate: The claim is that this takeover of healthcare is “just a tax” and is hence authorized in the Constitution by the amendment authorizing the income tax. Hard to believe that they would try that, isn’t it? This came up in response to my post on enumerated powers here.

Phantom Blogger writes:

In Britain where I live the Goverment forces you to buy car insurance or you’re not allowed to drive. Do they not do this in America? Is it unconstitutional?

LA replies:

That’s different. A person is already engaged in the act of owning and driving a car, an activity properly regulated by the state, and is required to buy liability insurance to cover damage to another party that may happen as a result of his driving a car. By contrast, the individual mandate requires people to do something, simply by virtue of existing.

Phantom Blogger continues:

By the way, I am not saying car insurance is the same as health insurance. Everybody needs to go to the doctor. Not everybody needs to drive. If you don’t want to drive or can’t afford it then you don’t need car insurance, but everybody needs Medicine and uses medical faculties so there’s no way of getting out of this. I just meant can your government say buy this product if you want to do such-and-such or is that unconstitutional.

LA replies:

That of course is the issue raised by the suit.

What if a person doesn’t want medical insurance but wants to pay for medical care with cash when he needs it?

As the Washington Times editorial puts it, if the individual mandate is constitutional, then the U.S. Constitution is a mandate for unlimited Congressional power, whereas, of course, the purpose of the U.S. Constitution was to place strict limits on the power of the Congress, apart from the narrowly enumerated powers for which the federal government was brought into existence.

Clark Coleman writes:

Reading the interstate commerce entry reminded me of a question I have had for a long time. Why don’t Republicans propose a constitutional amendment that defines the interstate commerce clause to apply only to the authority of Congress to prevent states from erecting barriers to free trade across state lines? That was the original intent of the clause. In all the decades of bitching and moaning about the misinterpretation of the clause by the Supreme Court, has any politician ever proposed this? [LA replies: you’re right, I have never heard any Republican politician or conservative propose this obvious idea.]

I think grassroots conservatives should plant this idea in the minds of their congressmen. Let’s have a roll call vote every year to get the tyrants on record, at least.

Diogenes writes:

Going against the individual mandate might be a difficult case to make in the Supreme Court. A much easier case to make might be on the constitutionality of the mandates on the insurance industry. According to noted constitutional scholar Richard Epstein, the insurance company mandates are a much clearer examples of constitutional violations of their due process rights. Litigation along these lines would perhaps be more immediately fruitful, especially given the strong precedents. Epstein’s extensive analysis is available here.

If this summer the Supreme Court knocked down the key regulations on price control, President Obama would be put in the difficult position of having to “fix” the bill by giving the insurance companies the ability to generate a reasonable profit from their activities. I can only imagine how the progressives would react to that one! At that point even Obama’s base might become more interested in repealing the bill, and starting over.

LA replies:

I am very much interested in what Epstein has to say on this and look forward to reading the piece, though I wish it were shorter. I don’t like Epstein as a political and social thinker, but he is valuable as a constitutional thinker. Years ago, it was his argument that persuaded me of the wrongness of Title VII of the 1964 Civil Rights Act which bars racial discrimination in employment.

Posted by Lawrence Auster at March 25, 2010 09:25 AM | Send

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