For the first time in American history, the federal government has decided that every man, woman, and child must do more than simply mind their own business. Upon the threat of fine, each American now must go out and buy health insurance.
Under the bill signed Tuesday by President Obama, every American must obtain health insurance by 2014. Within two years after that, the government will fine insurance-free renegades 2.5 percent of their income or $695, whichever is greater.
This "individual mandate" forms the centerpiece of the federal government's latest, greatest intrusion into civil society. Obama staked his presidency on the nationalization of one-sixth of the economy, with measures requiring employers to offer insurance, regulating the policies offered by insurers, and eventually setting the prices for medical procedures. Requiring all Americans to purchase insurance is intended to solve what is known as the "free-rider" problem--those who don't pay for health-care costs but use hospitals--and to broaden the risk pool so the younger and healthier subsidize the care of the older and sicker.
Never mind that most Americans first came to these shores to escape the meddling of their own governments. Put aside that a majority of Americans oppose Obamacare. Ignore the election of Republicans to Ted Kennedy's Senate seat in Massachusetts and the governorships of New Jersey and Virginia, all previously held by Democrats.
Politics cannot repeal Obamacare, at least not until opponents win the House, Senate, and presidency all at once. But the Constitution still stands in the way. Takeover of the health-care industry depends critically on Congress' authority "to regulate commerce... among the several states." Much of Obamacare, such as its requirements that insurance companies take all comers and forgo lifetime benefit caps, will pass constitutional muster as a regulation of a nationwide market in goods and services. But some of it will not, though it is a much closer question than either supporters or critics believe.
The framers of the Constitution believed that the Commerce Clause would control travel and trade that crossed state borders. They wanted to end the beggar-thy-neighbor policies that had led to trade wars between the states and replace them with a single nationwide market. But over the years, Congress--blessed by the Supreme Court under FDR's threat to expand its membership--has extended its reach to even intrastate activities that have a "substantial effect" on national commerce. The Commerce Clause has become the Ryan Howard of federal power, the go-to guy for everything from the prohibition on racial discrimination to the protection of endangered species to the cleaning of the nation's air and waters.
But the individual mandate may finally be a bridge too far, even for the Commerce Clause. In recent years, the Supreme Court has put an end to Congress' blank check on domestic regulation. In 1995's United States v. Lopez, the justices held that Congress could not ban gun possession in school zones as a regulation of interstate commerce. In 2000, United States v. Morrison went even further in striking down parts of the federal Violence Against Women Act. If the court were to allow Congress to go so far, Chief Justice William Rehnquist worried, there would be no logical stopping point. The federal government would have power over everything. The framers could have granted Congress a limitless police power, as that held by the states, but they didn't--which is why states can force everyone to buy auto insurance or health insurance, where the federal government cannot.
Instead, they carefully enumerated the precise powers given to the government to maintain a balance between the truly national and the truly local.
Aha!, say supporters of Obamacare, other cases go the other way. True. In Wickard v. Filburn, the court upheld a New Deal law fining a farmer for growing wheat purely for his personal consumption. The court's theory was that the accumulation of all of the individual farmers' wheat in the country would seriously affect the national market. And most recently, in Gonzales v. Raich, the same Rehnquist court that decided Lopez and Morrison upheld federal laws making possession of small amounts of illegal drugs a crime.
But the court has never upheld a federal law that punishes Americans for exercising their God-given right to do absolutely nothing. Even the furthest reaches of the Commerce Clause have extended only to affirmative actions, such as growing wheat or possessing illegal drugs. The only counterexamples that come to mind are the draft and jury duty, and those arise from other constitutional duties than Congress' power over interstate commerce. If the government can force every American to buy health insurance, why can't it impose fines for not losing weight, not exercising, or not eating low-fat foods--all in an effort to reduce the nation's health-care costs?
This is not to say that the government cannot reach the goal of providing health care for all, only that it has to follow the Constitution's established pathways. Rather than imposing an individual mandate, Congress could simply provide every citizen with a voucher to purchase a minimum health-insurance policy. The Constitution does not subject the government's right to tax and spend to the same limits as the Commerce Clause. Vouchers would minimize distortions in the insurance and health-care markets, and they would forgo the need for the thousands of new IRS agents and other bureaucrats who will be checking up on every citizen to see whether they have bought their insurance.
But there are two big problems with vouchers, despite their firmer constitutional groundings. First, they are too transparent. It is too easy to see the costs of universal health care, and it is too straightforward to compare the performance of the state and the private sector. Second, they don't grow the size of government. Obamacare will add to the legions of public employees who will favor the state over private-market solutions and who will be dependent on expanding government programs. It makes one wonder what Obamacare's agenda really is.
John Yoo is a visiting scholar at AEI.