3/22/2012 by Jacob Huebert, Liberty Justice Center
On Tuesday, March 27, the U.S. Supreme Court will hear
arguments on the most controversial part of ObamaCare: the “individual
mandate,” which requires that everyone not otherwise covered purchase
government-approved health insurance.
The government claims that the individual mandate is
constitutional because it falls under Congress’s power to regulate interstate
commerce. In an amicus brief filed by the Illinois Policy Institute
and like-minded organizations across the country, we argue that the law is far
outside Congress’s constitutional authority and must be struck down.
Supreme Court decisions since the New Deal era have held
that the Commerce Clause allows Congress to regulate virtually
any human activity that affects commerce.For example, in the notorious case of Wickard v. Filburn (1942), the Court decided that the
federal government could penalize a farmer for growing wheat on his own land
for his own personal use.Because
Mr. Filburn grew his own wheat, he would buy less wheat from others, so the
Court concluded that his actions affected the national market for wheat and
were therefore subject to federal regulation.
Wickard was a gross abuse of the Commerce
Clause.As Professor Randy Barnett
in the founding era, “commerce” only referred to shipping and trade, and
“regulate” meant “to make regular” – that is, to specify how an
activity related to trade and shipping may be done.The Commerce Clause was never meant to allow regulation of
all economic activity – but in the years since Wickard, that’s
essentially what the Supreme Court has said.
Even so, the ObamaCare case is different from all cases that
have come before, and the individual mandate should be struck down even if we
accept (for the sake of argument) the Supreme Court’s decades of liberal
precedents. Here, the government
isn’t punishing an activity (like growing wheat); it’s punishing inactivity –
people’s decision not to buy health insurance. The Supreme Court has never said that this is within
In a sense, it’s true that people who decide not to buy
insurance “affect” commerce: The markets for insurance and health care look at
least slightly different than they would if those people decided to buy
The trouble is, if we accept that reasoning, it follows that
Congress can force us to do virtually anything. When we choose to do a particular
activity, we implicitly choose not to do the infinite other things we
could be doing instead. By
choosing not to do those things, we are, by the government’s logic, “affecting”
commerce. And, by the government’s
logic, the Commerce Clause gives Congress the power to force us to do
any of those countless things we are choosing not to do. That means the government could force
us to buy Chevy Volts or gym memberships, or could even force us to eat the
foods it thinks are best.
That can’t be right. The Constitution’s framers intended the federal government to be one of
limited, enumerated powers. If
they had wanted to create the unlimited government that the Obama
Administration seeks, the framers wouldn’t have given Congress just 18 specific
powers, and they wouldn’t have made clear in the Tenth Amendment that all other
governmental powers belong to the states.
So the ObamaCare case is important not just because of the
huge harm the law would cause to people across Illinois and the nation; it’s
important because the Court will have to decide whether the federal government
will have any limits at all on its power in the 21st century.