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.
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