Still, the court has never held that the federal government may compel people to participate in commerce. And this is what makes the individual mandate unprecedented: Never before has Congress presumed to order average Americans to purchase a good or a service in the marketplace.
Simply from the standpoint of semantics, the law’s defenders face a challenge. As ordinarily understood, the word, “regulate,” implies rules for activity that people have freely chosen to engage in (running a business, for instance). The word doesn’t imply forcing people, say, to start a business in the first place.
Likewise, “commerce” implies economic activity – but someone who fails to buy health insurance is not engaged in economic activity.
Beyond these disputes over definitions lies a fundamental question about the extent of federal power: If Congress can force us to buy health insurance, what can’t it order us to buy?
Practically any individual decision to buy something, or not to do so, has some theoretical effect on the economy as a whole. And if that’s all that’s needed to justify federal intrusion, limitless dictates could be imagined. For example, what’s to stop Congress from forcing us to buy spa memberships – or electric cars – in the name of making us healthier, or more fuel-efficient, consumers?
As Federal District Court Judge Henry Hudson, who ruled in favor of Virginia’s challenge to the individual mandate in December 2012, put it: The argument for the mandate’s constitutionality “lacks logical limitation.”
Remarkably, the Obama administration has never offered a principled explanation of how to square the mandate with constitutional principles of limited federal government.