Orange you disappointed Kagan didn't answer the question?


Author: Anne-Marie Dao

Uncle Sam wants you … to eat your fruits and vegetables daily. During her recent confirmation hearings, Supreme Court nominee Elena Kagan was asked by Senator Tom Coburn whether Congress has power under the Commerce Clause to pass a law requiring Americans to eat fruits and vegetables daily. Ms. Kagan declined to say no. Silly as this may sound, that question is actually of critical importance. It and Ms. Kagan's answer (or silence) touches on the heart of the lawsuits challenging the constitutionality of ObamaCare. In fact, PLF Principal Attorney Timothy Sandefur recently debated ObamaCare's constitutionality at the annual convention of the American Health Lawyers Association, and asked his opponent, Professor Stewart Jay, whether Congress could force all Americans to drink a glass of milk before bed every night. Not surprisingly, Professor Jay, like Ms. Kagan, could not say no.

As originally written, the Constitution created a federal government of limited and enumerated powers -that is, it lists all of Congress' powers explicitly. But in the post-New Deal era, courts have expanded Congress' authority by broadly interpreting the Commerce Clause. Today, ObamaCare's supporters claim the federal government can even force Americans to participate in commerce against their will by buying health insurance.

This idea stretches the Clause beyond reason. Imagine you're standing in front of a mall and a police officer orders you to go inside and buy a pair of shoes. You do not need or want shoes; perhaps you were only walking past the mall on your way to the beach. When you ask the officer where he gets the right to force you to buy shoes you do not want, he answers that he is only regulating commerce. This would obviously be absurd, since to "regulate" implies that the commerce being regulated already exists. "Regulation" does not include the compulsion of commercial activities whether it be purchasing shoes or health care.

True, Congress does sometimes compel people to act (as opposed to regulating their self-chosen action). For example, under the Selective Service Act, American men of certain ages are required to register for the draft. But Congress' power here doesn't come from the commerce clause; it comes from a different constitutional provision: Congress has the enumerated power to "raise" armies. To "raise" means something very different than "to regulate."

Congress can require people to register for the census every ten years. But the Constitution gives Congress power to make an "actual enumeration." The power to make an "enumeration" is very different than the power to regulate existing commerce. There are those who believe that the individual mandate is necessary to keep people from taking advantage of the Act's prohibition on discriminating against individuals with pre-existing conditions; they argue that without the mandate to purchase health insurance, people will wait until they get sick before buying health insurance. Others argue that the individual mandate does not fix the "free rider" problem, because people can still choose not to buy insurance and pay the tax penalties, which are less costly than insurance. They claim that you can just pay those penalties until you get sick and then buy insurance-and the insurance companies are forbidden from turning you down. But regardless of whether the individual mandate actually addresses the free rider problem, Congress has no power to impose it. Even if ObamaCare is a good idea, that doesn't make it constitutional. If the federal government wants to impose such a requirement upon American citizens, a constitutional amendment is necessary.

If Congress gets away with its current scheme to force everyone to buy healthcare, what are the limits of its "power" under the Commerce Clause? What could it not do? Certainly requiring Americans to eat vegetables is a good idea. Americans eat too much junk food; it costs taxpayers billions to pay for victims of heart disease; the vegetable industry is a major interstate commercial industry; wouldn't it just be a regulation of the vegetable industry to force everyone to buy and eat some Brussels sprouts? Not to mention the benefits that would accrue to industry lobbyists. A can a day, that's all they ask.

These consequences are inevitable from Congress' absurd stretching of its commerce clause authority. Congress has no power to force you to step into the field of commerce - to buy health insurance or shoes or vegetables. Good idea or not, Americans have a right to go barefoot, to eat junk food, or to refrain from buying health insurance. And that right-like all our freedoms, is protected by the Constitution's limits on Congressional power.