Two Variations on “Could the Government Make You Buy A GM Car?”

One of the popular hypotheticals used in public debates over the individual mandate is the “Buy GM” hypo. Whenever someone describes existing commerce clause doctrine as very broad, the response quickly comes: “Do you think the federal government could mandate that everyone must buy a GM car?” The idea behind the question is that if someone concedes that the Commerce Clause is expansive enough to allow that, it must be wrong. Surely such a law must be unconstitutional.

When I hear that hypo, though, I always wonder if it is a genuine question about the Commerce Clause or whether it is really a Due Process question in disguise. Consider two slight variations on the “Buy GM” hypo:

1) Do you think state governments have the power to mandate that everyone must buy a GM car?

2) Do you think the commerce clause allows the federal government to mandate that everyone who travels in interstate commerce must do so in a GM car?

In the first question, there is no commerce clause angle at all. In the second question, there’s a commerce clause issue, but (at least under anything resembling current law) the law seems to be within the commerce clause power.

I wonder, though, how many people who say that the Commerce Clause forbids the federal government to force people to buy GM cars would then say that states could do it instead (hypo 1)? And how many people would say that Congress can’t make you buy a GM car, but that they have the power to force anyone who travels in interstate commerce to do so in a GM car (hypo 2)? My guess is that most folks who raise the GM Hypo would say that the scenarios in hypos 1 and 2 are unconstitutional, too. If I’m right about that, it would lead me to think that the GM Hypo is not so much about the Commerce Clause power as it is about other constitutional doctrines.

So here are my two questions for readers who think the Commerce Clause does not allow the federal government to order you to buy a GM car: (1) Could states do that? and (2) Could Congress order that you can only travel in interstate commerce in a GM car?