Author: Luke A. Wake
The federal government has only those powers specifically enumerated in the Constitution. The Constitution allows the federal government to regulate interstate commerce, including both economic activities and non-economic activities affecting interstate commerce. But, the mandate to purchase health insurance is not a regulation of any commercial activity, nor is it a regulation of an activity affecting interstate commerce. Simply put, the mandate to purchase health insurance regulates the individual simply because he or she exists, not on the basis of any activity he or she has chosen. But Congress cannot regulate inactivity under the Commerce Clause.
The uninsured individual stands entirely outside the field of commerce and therefore Congress would need to justify the mandate to purchase health insurance under a power other than the Commerce Clause. Yet that mandate is not justified under any other constitutional provision either.
Congress can regulate most actions under the Commerce Clause, but it simply cannot compel people to engage in commerce against their will. Congress can require that individuals cover the costs of their medical expenses, but it cannot out-right impose an obligation to buy health insurance. The regulation must be tied to some activity that the individual freely chooses..
So how is the mandate to buy health insurance different from the mandate that hospitals receiving federal monies must treat everyone in the emergency room, regardless of their ability to pay?
Unlike the health-care law, the hospital mandate actually is a condition (on the receipt of federal funds), not an outright mandate. The condition is likely justified by the courts' broad interpretation over the years of the Congress' spending power, not the Commerce Clause power.