- The Washington Times - Wednesday, March 24, 2010

Americans have grown used to Congress claiming the right to regulate and control everything they do. But by what right can Congress force Americans to purchase health insurance?

This question is at the root of lawsuits filed by 14 states challenging Obamacare’s requirement that those without health insurance must obtain it or face fines of $2,085 per household or 2.5 percent of income - whichever is greater.

Defenders of the new law point to the constitutional provision empowering Congress to regulate interstate commerce. The Supreme Court has long interpreted the Commerce Clause to extend well beyond what a common-sense reading would support. In the 1942 case Wickard v. Filburn, the high court ruled that farmer Roscoe Filburn could not grow wheat in excess of limits set by the 1938 Agricultural Adjustment Act. It did not matter that the wheat was grown on his own land for his own use - in this case feeding his chickens. According to the court, “control of total supply … depends upon the control of individual supply.” If enough farmers like Filburn grew their own chicken feed, they would not buy it, and this would have an impact on commerce nationwide. The Congress that can regulate Roscoe Filburn’s chicken feed can regulate anything.

Still, Congress never claimed it could force people to take up farming or any other vocation. This is the radical interpretation of the Commerce Clause embedded in the health care bill. It is not a power to regulate commercial activity, but to compel it.

The change is unprecedented. All previous Commerce Clause cases have dealt with regulating pre-existing activity, but if someone is not buying health insurance, there is no commerce to regulate. The clause has never been used to compel private citizens not engaged in commerce to spend money on a government-mandated program. This is a new, extreme and potentially dangerous interpretation.

Professor Erwin Chemerinsky of the University of California, Irvine, School of Law defends the individual mandate on the grounds that the Commerce Clause “includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, ‘substantial effect’ can be found based on the cumulative impact of the activity across the country.”

This is a significantly flawed view as applied to the individual mandate because almost everything people do or choose not to do has a “substantial effect” on commerce. It would by extension give Congress the power to regulate all human activity or inactivity. Professor Chemerinsky’s interpretation of the Commerce Clause represents a significant threat to human freedom because it gives Congress essentially unlimited power. The Constitution is an instrument created to limit the power of government, not a vehicle to justify its infinite reach. Thus, any line of argument that grants limitless powers under the Constitution is inherently wrong. Any laws justified by such claims are, by the same reasoning, abhorrent to the Constitution and must be overturned.

The states fighting Obamacare in court are concerned with more than just health care. At stake are two fundamental views of the nature of the Constitution. In one, government power is limited. It enables and supports human liberty, serves as a referee to keep the game fair and punishes criminals who break the law. In the other view, government is a coercive mechanism that aims at perfecting a social vision in which personal freedom takes a back seat to the utopian plan where the ends justify the means.

The lawsuits arising from the government health care takeover will help to clarify these issues. They will force the government to justify its actions in terms that will be acceptable not only to the courts, but also by the people. Whether or not the states prevail, it is doubtful that the Obama administration and the Democrats in Congress will be able to satisfy the public that their rights and liberties, not to mention health and pocketbooks, have to be sacrificed in pursuit of this particular vision of paradise.