Academic

Muddled thinking about the Commerce Clause

By Tung Yin

A letter in today's Oregonian questions the legal challenge to the individual mandate in the Patient Protection and Affordable Care Act:

A federal judge has ruled that the requirement that most Americans obtain health insurance would constitute a giant expansion of the court's traditional application of the commerce clause of the Constitution. Lawyers representing the plaintiffs argued that the insurance requirement is unconstitutional because it would require citizens to buy a commercial product.

It really wasn't all that long ago that a similar set of arguments was used for and against the mandate that all drivers of motor vehicles must purchase insurance. The irony of Republican attempts to eliminate the individual mandate could be that their actions may push the health care debate toward a public option.

The letter author unfortunately has failed to distinguish between state laws and federal laws.  State legislatures have general police powers, and the only limitations on their ability to enact laws are found in the U.S. Constitution or the state's own constitution.  The federal government, on the other hand, is a government of limited powers -- not only is it constrained by the Bill of Rights (and other provisions in the Constitution), it can legislate only pursuant to enumerated powers.  The Commerce Clause is an enumerated power, and it is augmented by the Necessary and Proper Clause.  That combination may well be deemed enough to justify the PPCA, but that is the relevant issue as to the PPCA's constitutionality.

The requirement of purchasing insurance as a condition of driving, on the other hand, is a creature of state law, thus not requiring any enumerated power; and furthermore, it is conditioned upon, activity (driving), not inactivity, which is a distinction that the PPCA challengers have made.

Full post as published by The Yin Blog on December 20, 2010 (boomark / email).