Very worthwhile Ann Althouse Post on the constitutionality of mandating people buy health care. (H/T Instapundit)
While Raich allowed Congress to regulate market activity, what about market inactivity; that is, a person NOT buying health care:
Moreover, the Commerce Clause question is quite a bit more complicated that Dean Chemerinsky makes it sound. The marijuana growers were engaging in an activity — making a product for which there is a big, regulated market. In this new case, we’d have Congress regulating people for their inaction. What other case is like that? Congress can “regulate activities that substantially affect interstate commerce”? Where’s the activity? It’s inactivity! And Supreme Court cases have limited Congress’s power where the activity in question is noncommercial. Isn’t the failure to buy insurance noncommercial?
People frequently equate health care mandates to car insurance mandates. That is, almost every state requires a person to buy auto insurance, or pay into some uninsured motorists fund. David Savage does so in this LA Times Op-ED.
But, the pivotal difference is that the states are requiring this, and not the federal government. Contrary to the protestations of many, the states have a general police power. The federal government doesn’t. While the states routinely make people do stuff, the federal government cannot compel people to do stuff.
As Roger Pilon puts, it “What next? Can Congress order you to buy spinach?”
Though, the feds frequently compel business to do stuff, but that’s a discussion for another day. When I raise this argument to most, I get glazed eyes. I’m glad Althouse is bringing this point to the mainstream.