So Congress has no authority to require individuals to make a purchase? Really? [View All]

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled... That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder...

Mandating individuals to purchase health insurance, opponents claim, isn’t a regulation of economic activity. According to Virginia Attorney General Ken Cuccinelli, “We contend that if a person decides not to buy health insurance, that person—by definition—is not engaging in commerce and, therefore, is not subject to a federal mandate.”

Yet people who fail to buy health insurance are engaging in economic activity. They are making an economic decision to self-insure. If they fall ill, they usually find that they can’t afford medical care and visit an emergency room. Or they go without care, allow their condition to worsen, and then get taken to an emergency room. In either case, the American people foot the bill. The national economic consequences of individuals deciding to go without insurance are enormous.

Even if self-insuring could be construed as non-economic activity, the individual mandate is still within Congress’s commerce power. The High Court has held on numerous occasions that Congress can regulate non-economic activity as part of a larger, comprehensive effort to regulate some aspect of our national economy. Just a few years ago, the Supreme Court held that Congress, as part of its effort to stamp out interstate commerce in illegal drugs, could prohibit a person from growing marijuana in his own home for his own use. The court has also said that Congress, as part of regulation of wheat prices, can limit the amount of wheat a farmer grows on his own land for his personal use.

With health care, controlling precedent seems to clearly allow Congress, as part of its comprehensive effort to regulate the interstate health-care market, to require individuals to have insurance coverage. Even if the decision to go without insurance is not economic activity, Congress can reach it because health care profoundly affects interstate commerce.