The Federalist Society is hosting an online debate between Dean Chemerinsky and David Rivkin.
Cheremsinsky’s argument, in a nutshell:
The constitutional objection that I have heard most often is that Congress lacks the authority under Article I of the Constitution to do this. But such a mandate clearly falls within the scope of Congress’s authority to regulate commerce among the states.
Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce. Purchasing health insurance is an economic transaction. Taken cumulatively those who do this, or who don’t do it, have a substantial effect on interstate commerce.
There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all. It regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.
The cases cited by Professor Chemerinsky – Wickard v. Filburn and Gonzales v. Raich – do not support his position. In both of these cases, Congress sought to regulate individuals engaged in traditional agricultural/economic activities, growing wheat and marijuana. The fact that they did so for personal consumption did not detract from the underlying economic nature of these activities, especially since Congress sought to regulate them as a part of a comprehensive inter-state regulatory scheme.
Rivkin’s argument is a stretch, though it is a bit refined from some of his previous arguments. Ann Althouse made a similar point. It is more likely will find that mandating a person to do something is different from regulating how a person does something. There is a distinction, but it may be without a difference.