What can Congress not do?


Author: Timothy Sandefur

The federal trial court decision in the first Obamacare challenge is a sweeping assertion of federal power, far beyond even the very extensive power courts already allow Congress under the commerce clause. According to the court, a person’s decision not to buy health insurance is a commercial activity that can be “regulated” by the government because

as living, breathing beings, who do not oppose medical services on religious grounds, [all Americans] cannot opt out of this market. As inseparable and integral members of the health care services market, [people who choose not to buy health insurance] have made a choice regarding the method of payment for the services they expect to receive…. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

Consider for a moment what else this argument proves. Under this theory, there is no limit what Congress can do. Some time ago, we mentioned the example of Congress forcing every American to drink a glass of milk before bed every night, or forcing us to buy cars from government-owned General Motors. At her confirmation hearings, Justice Elena Kagan refused to say that Congress lacks power to force us all to eat vegetables. All these things have some effect on commerce. As living persons, none of us can avoid the need to eat. Thus the decision not to drink milk and eat vegetables has an undeniable economic effect, and therefore Congress could rationally choose to force us to drink milk or eat vegetables. By choosing not to buy a car this year, you have made a choice regarding the method of payment for transportation that you expect to use at some point, and that decision has an impact on interstate commerce….

This theory is a recipe for unlimited Congressional power over nearly every decision or lack of a decision that has any economic consequences of any sort. As Prof. Randy Barnett says, “If the Supreme Court ever accepts the government’s ‘economic decision’ theory, then there is nothing it cannot mandate in the future in the name of regulating ‘commerce…among the several states.’ Congress will then have the general police power that both the Constitution and the Supreme Court have always denied it.” A deeply disturbing thought–and one that would have shocked and amazed the Founding Fathers.