obamacareby Rob Natelson

There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.

It is also distinct from whether states can impose insurance mandates. They can: States have general governmental powers. But the federal government has only the powers enumerated (listed) by the Constitution.

Let us be clear at the outset that federal involvement in health care (except in a few isolated instances, such as federal employee benefits) certainly violates the Constitution as that document was originally understood.

I have now spent nearly twenty-years of my life researching and publishing scholarly studies on the Founding-Era record, and I have found no significant evidence that those who wrote and ratified the Constitution thought federal power would extend to health care. Quite the contrary: When the Constitution was being promoted to the public, one of the big selling points was that regulation of all such matters would remain exclusively with the states.

So for those who subscribe to the widely-held view that the Constitution, like any other legal document, means today what it meant when adopted (aside from amendments), there is no real question: Federal health care mandates are unconstitutional.

The more-discussed point, however, is whether such mandates are within the federal government’s authority as that authority is applied by the Supreme Court today. More specifically, does the mandate qualify under Congress’s Commerce Power as a law “necessary and proper for carrying into Execution” the power “To regulate Commerce . . . among the several States. . . ?”

Recent Supreme Court cases are split between (1) those that hold that a law qualifies if it regulates an activity that “substantially affects” interstate commerce and (2) those that hold that a law qualifies if Congress could rationally believe that the activity “substantially affects” interstate commerce. Because of changes in personnel on the Court, it is not clear which standard the Court would apply. Of course, everyone agrees that health care activity as a whole “substantially affects” interstate commerce.

Nevertheless, federal health insurance mandates face at least two difficulties meeting either of the modern Court’s standards for the federal Commerce Power. The first is that just doing nothing — not buying heath insurance — is not an “activity.”

In a famous case relied on by those who think mandates are const