Can Congress Force You to Be Healthy?

HENRY E. HUDSON, the federal judge in Virginia who ruled this week that the individual mandate provision of the new health care law is unconstitutional, has become the object of widespread derision. Judge Hudson explained that whatever else Congress might be able to do, it cannot force people to engage in a commercial activity, in this case buying an insurance policy.

Critics contend that Judge Hudson has unduly restricted Congress’s authority to regulate interstate commerce, the principal basis on which the government defends the law. Some also claim that he ignored the “necessary and proper” clause of the Constitution, which allows Congress leeway to choose how to put in place national economic programs. Yet a closer reading shows that Judge Hudson’s analysis could prove irresistible to the Supreme Court and that there is a reasonable chance it will agree that the insurance mandate is invalid.

For the last century the Supreme Court has struggled to define the limits of Congress’s interstate-commerce power. In the early decades of the 20th century, the court experimented with a variety of distinctions: Congress could regulate trade but not the manufacturing process (in a child-labor case); Congress could regulate anything that directly affected interstate commerce but not where the effect was indirect (in a labor dispute involving coal miners); Congress could regulate goods in the stream of commerce but not before they entered or after they left that stream (in a ruling on chicken farming).

These distinctions, however, proved unworkable in a time of industrial growth and expanding national markets. And in the 1930s, confronted with the surge of governmental power during the New Deal, the court abandoned them all.

Beginning in the mid-1990s, however, the court took up the project anew. In invalidating a federal gun possession law and the provision of the Violence Against Women Act that allowed victims to sue their attackers, Chief Justice William Rehnquist and his colleagues held that while Congress could regulate local economic behavior because of its national economic effects, Congress could not on the same theory regulate non-economic behavior like possessing a gun or committing an act of violence.

Read the rest here.