David Rivkin and Lee Casey argue that a federal mandate requiring all individuals to obtain health insurance would lie beyond the scope of Congress' enumerated powers. Specifically, they argue that neither the power to "regulate commerce among the several states" nor the taxing and spending power could support such an all-encompassing mandate. Here is a taste of their argument:

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

Jack Balkin is similarly unconvinced. I generally agree with his bottom line, but would question some of his argument as well. First, he chides Rivkin and Casey for making an argument that would effectively invalidate the New Deal. I am not sure this is true. While some post-1937 programs might be at risk, one might also distinguish Wickard on the grounds that it involved a commodity sold in interstate commerce (wheat), whereas health insurance is a service. One might also argue that there is a difference between seeking to control the conditions of any commodity sale (its price, quantity, etc.) and mandating that a sale take place. This line would be similar to that embraced in some New Deal commerce clause cases that upheld federal regulations setting conditions on the manufacture of goods sold in interstate commerce while ostensibly leaving the manufacture of goods not sold in interstate markets untouched. If I recall correctly, this line was maintained until Maryland v. Wirtz in 1968. So while The Rivkin-Casey argument is aggressive, I don't think it would completely overturn the New Deal.

Balkin also chides Rivkin and Casey for citing Bailey v. Drexel Furniture, "a case from the Lochner Era," to make their case. Well, like it or not, Bailey has never been expressly overturned, and I think there's a good reason for that. In Bailey, the Court held that Congress could not use the taxing power to regulate behavior that would otherwise lie beyond the scope of the federal government's other enumerated powers. This may well be true. The problem with Bailey, then, is not its view of the taxing power, but rather the Bailey court's restrained view of the federal commerce power. What makes Bailey and other cases largely irrelevant today is that there is so little that the federal government seeks to tax that it cannot otherwise regulate. I'd also note that it is not as if the Court is averse to relying upon other cases with Lochner-era pedigrees. Indeed, Meyer v. Nebraska and Pierce v. Society of Sisters are still good law, and each is closer kin to Lochner than Bailey, as they relied upon Lochner's substantive due process rationale.

Speaking of substantive due process, there may be other constitutional problems arising from national health care reform — but not of the enumerated powers variety. While the federal government may be able to require national health insurance coverage, could it require all individuals to purchase plans that cover certain procedures? What if the guidelines for acceptable plans include contraception, abortion, and certain types of end-of-life care? Could the federal government require devout Catholics to purchase such plans for themselves? Insofar as a new federal entitlement and regulatory scheme severely limits the ability of individuals to make fundamental health-related choices for themselves without undue federal interference, might it also run up against Griswold, Cruzan, etc.? So long as individuals retain a choice of health care providers such concerns may be quite marginal, but were a "public plan" to become a de facto single-payer plan, the constitutional issue could grow. If limitations on abortion procedures must contain a health exception in order to be constitutional under Casey, would this complicate efforts to control costs by excluding some potentially life-saving treatments under s single-payer system? Of course, these sorts of arguments are more likely to come from libertarians than conservatives, as the latter may be uncomfortable with expanding the scope of the Court's fundamental rights jurisprudence.

UPDATE: Calvin Massey adds his thoughts here.