But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion.
If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18% of the United States economy. (In this connection recall Perez v. United States, which held that a very local loan sharking operation was within Congress’s power to regulate commerce.) And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8 of the Constitution.
A point on the economic nature of the policy (forgot to copy the link before I closed it, sorry):
According to tax economists, there’s no economic difference between the individual mandate and the policies leading Republicans support to give large tax credits to Americans who purchase health-care insurance and deny them to those who don’t. But while the mandate might get overturned, everyone agrees that discriminatory tax credits are constitutional. ...
Now, various conservative legal minds have argued that there is a profound difference between these two policies: One is penalizing a particular form of economic inactivity, while the other is encouraging a particular form economic activity. And perhaps that’s so. But it’s not a difference very many Americans would notice when it came time to pay their taxes.
About the limiting principle thing that I couldn't quite understand:
The only problem that Chief Justice Roberts and Justice Kennedy expressed with the mandate is the lack of limiting principle on Congress’s ability to mandate the purchase of privately-made/issued products. If that’s really the concern of each Justice, and it sure seemed that it was, neither man is lacking in the self-regard and intellect necessary to craft such a limiting principle. And that’s where my money remains. The Government didn’t make their jobs easier, but it’s one thing to fault the Government for failing to articulate a limiting principle and quite another to overturn momentous legislation on that basis. Because to do the latter is to say that the Justices can’t craft such a principle either. Here’s betting both can, and Roberts will.
More from Fried, Reagan's solicitor general:
Activity and inactivity is not in the Constitution. Now, there are millions of cases that talk about the power to regulate activities that affect interstate commerce, from which Randy Barnett drew the conclusion inactivity is not included. It just hadn’t come up!
And if 95 percent of them are in that market every five years, they’re in it. They haven’t put that off. They’ve gone to a health-care clinic. They’ve procured a prescription for a prescription drug. Ninety-five percent of the population! So where’s the inactivity?
The other thing is I think it’s Justice Kennedy who said this fundamentally changes the relationship of the citizen to the government. That’s an appalling piece of phony rhetoric. There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in in the ’60s. That’s a fundamental change. But this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years. ...
I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it.
More via The Dish:
How can anyone make the case that individuals should not be forced to buy insurance without also insisting that hospitals have the right to turn away anyone who can't prove they have the capacity to pay? Scalia asks if the government can force us to buy broccoli. Someone should ask him if it's constitutional for the government to mandate that grocers give it away?
Why not mandate burial insurance, too, as Justice Alito asked? The burial counter-argument is the strongest criticism I've heard. Its strength helps uncover why health care is special:
Burial Insurance vs. Health Insurance
One-time expense v. Open-ended, uncertain expense
Small cost for minimum service v. Potentially enormous costs
Nature of minimum service is simple and commonly replicated v. Nature of basic services are complex and highly individualized
Political branches have not identified unpaid burial expenses as major social problem v. Political branches have been debating solutions to this huge social problem for decades
There really is no market like health care. Its unique status justifies the unprecedented individual mandate prior to point of sale.
Update, more arguments:
But the most important problem with this argument is that it proves too much. If the federal government cannot be permitted any power it might potentially abuse, there would be nothing left. Utterly uncontroversial powers that are explicitly stated in the Constitution give the federal government the authority to pursue policies that would be far more foolish and destructive than even the dreaded broccoli mandate. Congress could, for example, declare war on Canada, or the president could use nuclear weapons to pulverize the entire European Union. The idiocy and gross immorality of such policies doesn't mean that Congress's power to declare war or the president's status of commander-in-chief of the military should be written out of the Constitution.
And the same goes for the power that Congress has to regulate interstate commerce. Ultimately, the best check against unwise legislation is politics. As the Constitutional was being deliberated, James Madison didn't believe that the specific powers of the federal government should be limited in advance -- not because he didn't believe in limited government, but because he felt that the multiple veto points within the federal government provided a more than adequate check on federal power. The fact that upholding the ACA might permit Congress to do something foolish down the road is neither here nor there -- the same is true of any government power. Arguments that the ACA is unconstitutional have to stand or fall on their own merits -- and the merits of the anti-ACA argument are ultimately weak.