But can Congress require every American to buy health insurance? In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
I know we were all taught in school that the Constitution limits federal power, but does anyone really believe that any more? The authors are partners in the D.C. office of Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush. I salute their faith, even if I don't share it. I am sorry to say that I think the Constitution is essentially dead. There is really very little, if anything, that limits the Federal Government's power any more.
Am I exaggerating? Consider this quote from a dissent by Justice Thomas:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.
How can it be doubted that the same Commerce Clause, or some other supposed justification, will be applied in the case of mandatory health insurance? The legality of McCain-Feingold, the Kelo decision, and the decision in the Monson-Raich case are just some of the more recent and egregious examples of how the our Constitutional protections from Federal over-reach have been eroded.
Ann says: I prefer the far more ironic Roe v Wade objection: if the government can not ultimately interfere in the decisions made between a doctor and their patient, and if the patient has a constitutionally-guaranteed right to privacy for all that happens between their doctor and themselves, then various rationing schemes, and government interference in general is unconstitutional.
I don't believe for one second that would actually fly either.
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