The New York Times Room for Debate Forum has recently posted a set of short op eds by experts on both sides of the upcoming health care cases. My own contribution to the Forum is here. Here’s an excerpt:
The individual health insurance mandate case raises momentous issues about the limits of federal power. As James Madison put it, the Constitution does not give the federal government “an indefinite supremacy over all persons and things.” If the court upholds the mandate, that principle will be undermined.
The commerce clause gives Congress authority to regulate interstate commerce. Failure to purchase health insurance is not commerce, interstate or otherwise. Since the 1930s, Supreme Court decisions have interpreted the clause broadly. But every previous case expanding the commerce power involved some sort of “economic activity,” such as operating a business or consuming.
If Congress could use the clause to regulate failure to purchase insurance merely because that choice has economic effects, there would be no structural limits to its power.
To my mind, the most interesting piece in the Forum is Vanderbilt lawprof James Blumstein’s commentary on the unduly neglected Medicaid conditional funding case. This important issue deserves more attention than it has gotten so far.