Reply #18: You are looking at the wrong clause in the Constitution. [View All]

[BzaDem]

The question is not whether the mandate is a regulation of commerce.

The question is whether the mandate is necessary and proper for another reguation of commerce to work.

In the bill, Congress mandated insurance companies sell to all at the same rate. That is undisputedly a regulation of commerce. The mandate is necessary to ensure the this regulation does not destroy the insurance market. This happens to be a fact that basically all healthcare economists agree with, but even if you personally disagree with this, Congress has wide latitude to determine what is necessary and proper. This determination is only subject to minimal judicial review. (See McCulloch vs. Maryland and the subsequent 200 years of jurisprudence governing the necessary and proper clause.) In fact, to overturn a law because it is not necessary and proper, a court has to find that Congress did not even have a rational basis in concluding so. The necessary and proper clause is extremely broad and does not distinguish between mandates and other laws.

That's all there is to it. All of these metaphysical questions about what is activity/inactivity are irrelevant.

If you think it is a bad law, the way we handle bad laws in this country is by electing representatives to repeal them. We do not invent new doctrine contradicting hundreds of years of jurisprudence out of thin air to attempt to constitutionalize our preferences against the will of the majority. There are plenty of laws Congress has the power to enact that are FAR worse, and FAR more invasive, than the individual mandate.

If we overturn 200 years of jurisprudence and ratchet up the necessary and proper requirement to a level higher than it has ever been in our history, many liberal economic regulations will soon be on the chopping block. It is amazing to me that any liberal believes we should go there (even if they dislike the mandate).