The alleged constitutional justification for Obamacare’s
individual insurance coverage mandate can be summarized in one
sentence: The federal government has the authority to preemptively
regulate your economic activity.
President Obama, famous denouncer of preemptive war, declares
that he has not only the power but the constitutional authority to
regulate every American’s economic behavior before it
happens in the interest of making the market function the way
he would like it to function. It’s like Minority Report
come to life, but with economic transactions, not crime, as the
activity the state intervenes to alter before it occurs.
Arguing before the Supreme Court on Tuesday, Solicitor General
Donald Verrilli asserted that “the system does not work” for
Americans who do not have health insurance, therefore Washington
has an interest in “regulating the means by which health care is
purchased,” which he said was all the individual mandate does.
Justice Anthony Kennedy stopped him right there and asked, “Can
you create commerce in order to regulate it?”
Verrilli had a ready response. “That’s not what’s going on here,
Justice Kennedy.” He explained, “What is being regulated is the
method of financing the purchase of health care. That itself is
interstate commerce.”
(Never mind that one cannot purchase a health insurance policy
across state lines.)
Were Verrilli correct that all the mandate regulates is the
method of purchasing health care, then the law would state
that individuals must purchase health care through an insurance
provider when they purchase any health care service. But
it doesn’t say that. It says that individuals must purchase
insurance regardless of whether they ever consume a health care
service.
“This is market regulation,” Verrilli asserted. He told the
justices that everyone agrees Washington has the power “to impose
the minimum coverage provision. Their [the opponents’] argument is
just that it has to occur at the point of sale.”
Well, yes, regulating a transaction as it takes place would be a
“market regulation.” Compelling people to enter into a market they
otherwise would not enter is not market regulation, but coercion.
But that is not how the Obama administration sees it.
“We think this is regulation of people’s participation in the
health care market,” Verrilli said. “All this minimum coverage
provision does is say that instead of requiring insurance at the
point of sale, that Congress has the authority under the commerce
power and the necessary and proper power to ensure that people have
insurance in advance of the point of sale because of the unique
nature of this market.”
By acknowledging that the mandate regulates a sale “in advance
of the point of sale,” Verrilli admits that the law creates a
commercial transaction. He defends that tyrannical act by asserting
that everyone will consume health care at some point so the
government is merely regulating a transaction that is going to
happen eventually.
At that point, Justice Scalia noted that everybody has to eat,
so why couldn’t the government regulate the food market by
mandating that people eat broccoli. Verrilli thought he had a solid
rebuttal, but in fact he gave up the game with it.
The food market, he said, “is not a market in which your
participation is often unpredictable and often involuntary. It is
not a market in which you often don’t know before you go in what
you need, and it is not a market in which, if you go in and seek to
obtain a product or service you will get it even if you cannot
pay.”
It isn’t? The left claims that the food market is exactly the
kind of market Verrilli said it was not. Have you ever heard of
food deserts? Those are places where, liberals say, people cannot
access healthy food. Rural areas and inner cities are examples of
places where the left claims government needs to intervene to
ensure access to healthy food. That’s why Los Angeles banned new
fast food restaurants in some low-income neighborhoods. If the type
of food you consume is determined entirely by what nearby
commercial vendors offer, then your participation in the food
market is by definition “often unpredictable and often
involuntary.”
Why do we have government nutrition guidelines and
government-mandated postings of nutritional information (including,
in some places, nutritional info printed on menus) if the food
market is not one in which “you often don’t know before you go in
what you need?”
And what are food stamps if the food market “is not a market in
which, if you go in and seek to obtain a product or a service you
will get it even if you cannot pay?”
All of Verrilli’s attempted justifications for the insurance
mandate could very well apply to food as well as health care.
Arguably, they could apply to transportation and many other
markets, too.
Even if those conditions did not exist in any other market, the
government could create them by doing to another market what it did
to health care: cause untenable economic conditions via a myriad of
ill-conceived regulations. The issue is not the uniqueness of the
health care market but the radical nature of the remedy the Obama
administration and Democratic Congress imposed.
To accept the Obama administration’s argument for the individual
mandate would be to accept the premise that Congress has the
constitutional authority to shape any market to its liking by
ordering into the market anyone whose participation would produce
the outcome Congress wants.
Granting Congress the authority to preemptively regulate
economic activity would give Washington compulsory powers far
beyond anything the Constitution contemplates. And the Obama
administration is attempting to achieve that authority by tricking
the Supreme Court and the American people into believing that it is
claiming no more power than it has already been given.
Andrew Cline is editorial page editor of the New Hampshire Union
Leader. His Twitter ID is @Drewhampshire.
