. . . By what authority, after all, could Congress force all Americans to buy health insurance?
In a recent press release, House Speaker Nancy Pelosi, D-Calif., argues that constitutional objections to the individual mandate are "nonsensical," because "the power of Congress to regulate health care is essentially unlimited."
In answer to the question "by what authority?" Reid's bill offers the Commerce Clause — the go-to provision for friends of federal power. That clause gives Congress the power "to regulate Commerce ... among the several states."
It was a modest measure designed to regularize cross-border commerce and prevent interstate trade wars — so modest, in fact, that Madison described it in the Federalist as a clause that "few oppose, and from which no apprehensions are entertained."
The Founders would have worried more had they known that the Commerce Clause would eventually become a bottomless fount of federal power. In 1942's Wickard v. Filburn, the court held that the Commerce Power was broad enough to penalize a farmer growing wheat for his own consumption on his own farm.
That farmer, Roscoe Filburn, ran afoul of a New Deal scheme to prop up agricultural prices. The fact that he wasn't engaged in interstate commerce — or commerce of any kind — was quite beside the point. If "many others similarly situated" engaged in the same behavior, it would substantially affect interstate commerce, and frustrate Congress' designs.
In its "Findings" section, Reid's bill hits all the jurisprudential buzzwords: The individual mandate "substantially affects interstate commerce," and regulates "activity that is commercial and economic in nature." Activity like standing around without health insurance? Apparently so.
Yet, as the Congressional Budget Office noted in a 1994 evaluation of Clintoncare, an individual mandate would be "unprecedented. ... The government has never required people to buy any good or service as a condition of lawful residence in the United States." . . .