The biggest weakness in the case for the constitutionality of the individual health insurance mandate is that it collapses into a rationale for virtually unlimited federal power. To deal with this problem, defenders of the mandate have put forward a variety of arguments claiming that health care is a special case.
The most popular one, recently restated by Walter Dellinger and Linda Greenhouse, is that health care is a special case because everyone or almost everyone uses it at some point in their lives. However, there is a serious flaw in this argument that mandate defenders have yet to find a way around. I have pointed it out several times over the last two years, including here:
The fact that most people eventually use health care does not differentiate health insurance from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that the government does not argue that everyone will inevitably use health insurance. Instead, they define the market as “health care.” The same bait and switch tactic works for virtually any other mandate Congress might care to impose.
Consider the famous example of the broccoli mandate raised by Judge Roger Vinson in the Florida case. Not everyone eats broccoli. But everyone inevitably participates in the market for “food.” Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s argument. The same goes for a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. There are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation.” We all need to get from place to place somehow. How about a mandate requiring all Americans to see the new Harry Potter movie? After all, just about everyone participates in some way in the market for “entertainment.”
Interestingly, Greenhouse unintentionally illustrates this point herself. As she puts it:
The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.
Brussels sprouts and buses are indeed alternatives to broccoli and cars. But Brussels sprouts are still part of the food market, and buses part of the market for transportation, in the same way as health insurance and other forms of health care provision are both part of the health care market. Thus, people “who don’t want to buy broccoli or a new car” are still “in commerce” just like people who don’t want to buy health insurance.
You can use similar reasoning to justify virtually any other mandate. Every good that we might be required to purchase or use is part of some broader market that all or most of us will not avoid. How about a mandate requiring people to read and study Volokh Conspiracy blog posts? After all, everyone at least to some degree uses the market for “information.” And if you don’t get information from the VC, you are still likely to get it from other (surely inferior) sources.
As Jonathan Adler points out, it is not in fact true that everyone uses the health care market. A few people do manage to avoid it. By contrast, the market for food really is literally impossible to avoid for anyone who wants to remain alive for more than a short time. Even if you grow all your own food without using any tools purchased from others, you would still be engaging “economic activity” as the Supreme Court defines that term. Far from distinguishing this case from the broccoli mandate, the “everyone uses health care” argument actually provides stronger support for food purchase mandates than for the health insurance mandate.
Mandate defenders have also advanced several other rationales for why this is a special case. I give a detailed critique of them in this article, and in the amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (pp. 22-28). These rationales all suffer from much the same weaknesses as the “everyone uses health care” argument: their reasoning can justify virtually any other mandate, including the broccoli mandate, the car purchase mandate, and others.
So far, all the king’s horses and all the president’s men have yet to figure out a way to make this mandate special again. Indeed, it’s noteworthy that the seriously flawed “everyone uses health care” argument remains the most popular of the different rationales for why the mandate is a special case. If the many outstanding lawyers and legal scholars on the pro-mandate side have not come up with anything better after two years of effort, that may indicate that no better argument is possible.
None of this will matter if the Court is willing to follow the lead of the D.C. Circuit, which upheld the mandate despite acknowledging that there are no limits to the federal government’s logic. But, like David Bernstein, I highly doubt that a majority of the Justices are going to endorse the notion that congressional power is essentially unlimited.
UPDATE: For some reason, this post was initially time-stamped a day earlier than it should have been. I have now fixed this problem.