ObamaCare Is Still Constitutional

Today I particpated in another debate over the constitutionality of the Affordable Care Act’s individual mandate.  At the invitation of the Milwaukee Chapters of the Federalist Society and the American Constitution Society, I debated Robert Levy of the Cato Institute over luncheon at the Milwaukee Athletic Club.  My thanks to our hosts, to Mr. Levy, and to the audience.  Below are my prepared remarks.  My previous post on the consitutionality of the individual mandate can be viewed here.

In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

We must never forget that our Constitution is a document that was intended to create competent powers for Congress for general purposes.

Much of what Mr. Levy cites in oppostion to the individual mandate is based upon abstract principles.  However, when we interpret the Constitution, we do not begin with abstract theories of political philosophy, and then attempt to shoehorn those theories into the text.

Instead, when we interpret the Constitution, we begin by looking to the text itself.

The power to “regulate,” which is the power delegated to Congress under the Commerce Clause, is the power to prescribe the rules by which commerce is governed.  The word “regulate” means “to direct” or “to command.”  Therefore, the plain meaning of the word “regulate” in the text includes a grant to Congress of the power to require action.

Next we look to precedent.

Chief Justice John Marshall set the guiding principles of Commerce Clause jurisprudence when he wrote, in Gibbons v. Ogden (1824), that once the Court satisfies itself that the regulation of interstate commerce is involved, the power of Congress is plenary.  When John Marshall said “plenary,” he meant that it was not for the Court to impose a limit on the means that Congress chooses in the exercise of its delegated power.

Following Justice Marshall, the Supreme Court has long stated that so long as the law in question does not contravene an independent constitutional provision, the only question appropriate for judicial review is whether the subject matter of the regulation is interstate commerce.  Chief Justice Harlan Fisk Stone said in 1941, in United States v. Darby, “Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.”

Does the individual mandate infringe on a constitutionally protected right?  No.  So really the main question that concerns us today is whether the individual mandate is a regulation of interstate commerce.  It is.

The Affordable Care Act deals with real, quantifiable externalities in the national market for health insurance.  The decision of some persons to forgo the purchase of commercial insurance leads to unreimbursed costs being passed along to consumers across state lines.  The current amount of uncompensated emergency room care has been estimated to add $1,000 per year to the average family’s premium.  Because the Affordable Care Act mandates that insurance companies offer coverage to those with pre-existing medical conditions, the total dollar amount of cost-shifting from the uninsured to the insured would increase significantly if the individual mandate were not imposed.

Congress can clearly regulate the purchase of health insurance once you arrive at the emergency room, as a transaction with a substantial effect on interstate commerce in the aggregate.  Can Congress mandate the purchase of insurance in advance of your emergency room visit, in reasonable anticipation of a virtually inevitable future transaction?

We know that Congress can regulate potential future actions under the Commerce Clause.  It is well settled that Congress can prohibit future activity under the Clause.  Does it make a difference if, instead of prohibiting future acts, Congress mandates that future acts take place?

The case of Wickard v. Filburn (1942) is the closest precedent to the individual mandate.  The law upheld in Wickard forced farmers to enter the market and purchase wheat that they might otherwise prefer to grow themselves.

The decision to forego health insurance is similar to the decision of the farmers to forego the wheat market.  In both cases, Congress is requiring the consumer to participate in the national market.  The only difference is that the farmer wants the wheat now while the health care consumer wants to delay their purchase as long as possible.  If the offensive nature of the individual mandate simply reduces to a question of timing, then one has to question why such a distinction should make a difference.

It is true that there was a time at the end of the Nineteenth Century when the Supreme Court adopted rules under the Commerce Clause that sought to enforce formalistic distinctions.  The Court limited Congress to the regulation of activities with a “direct” connection to commerce, as opposed to “indirect,” or permitted Congress to regulate “sales” but denied Congress the power to regulate “manufacturing.”

During this period, the Court was engaged in a quixotic effort to define an intrastate zone of commerce subject to exclusive state control, while simultaneously marking the boundary of an interstate zone of commerce subject to primarily federal control.  The premise behind this misguided effort was that the Constitution embodied a system of dual federalism, whereby the 10th Amendment prescribed limits on the scope of the powers delegated to Congress.  Similarly, under the line of cases exemplified by Lochner v. New York (1905), the Supreme Court was engaged in a parallel effort to distinguish between the regulation of private economic choices, which were protected as part of the liberty preserved under the Due Process Clause, from matters of public concern which were found to be appropriate subjects for government regulation.

Both of these efforts were doomed to fail.  The American economy was rapidly growing and changing, and commerce became too intertwined and all pervasive to be capable of sorting into separate and well defined little boxes.

What is most notable about the Supreme Court’s experiment with formalistic labels, as a means of policing Congress’ power under the Commerce Clause, is how the Court’s reasoning relied upon the recitation of a parade of horribles. So, for example, in the 1895 case of United States v. E.C. Knight & Co., the Court struck down a federal law forbidding any merger of manufacturing companies that resulted in a monopoly, on the grounds that corporate consolidations were not commerce because they were not activities that directly involved the shipment of goods. This opinion said:

If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining – in short, every branch of human industry.

In order to avoid this parade of horribles, the Knight decision rejected the argument that the consolidated companies would, at some later date, send manufactured goods into the stream of commerce.  The Court said, in essence, that future commercial activity could not be used to justify the present regulation of intrastate affairs. Sound familiar?

The “inactivity” argument leveled at the individual mandate is nothing more than an attempt to re-introduce formalistic rules designed to limit the scope of Congress’ delegated power.

The problem with this attempt is that a unanimous Supreme Court rejected formalism, and repudiated the experiment with dual federalism, in Wickard v. Filburn.

The most important aspect of the Wickard opinion was its recognition that once Congress has made the factual finding that the effect on interstate commerce justifies federal regulation, the Supreme Court did not have any objective standard upon which it could reject such a finding.  As Justice Jackson wrote to his law clerk:

At what point these effects have enough vitality to confer federal jurisdiction and at what point they have passed outside it, we have no standards to determine, and I am not at all sure of our capacity to invent a standard that would have any validity upon the immediate case to which it is applied. In such a state of affairs, the determination of the limit is not a matter of legal principle, but of personal opinion; not one of constitutional law, but one of economic policy.

Wickard creates a presumption that congressional statutes passed pursuant to the Commerce Clause are constitutional, and places the burden upon the party challenging the statute to show that the activity being regulated, in the aggregate, has no substantial effect on interstate commerce.

The more recent cases of Lopez and Morrison do not apply to the individual mandate. United States v. Lopez held that Congress cannot regulate non-economic behavior based on an attenuated link to interstate commerce. An individual’s decision whether to self-insure or whether to purchase commercial insurance clearly falls within the realm of economic behavior.

United States v. Morrison held that Congress may not regulate individual interstate economic behavior if the aggregate impact of this behavior on interstate commerce is negligible. The cost shifting impact of uncompensated medical care is well documented, and hardly negligible.

I note here that there is no quantifiable cost shifting involved when I refuse to eat broccoli or when I decline to purchase a health club membership. If I subsequently get sick, where is the factual basis for asserting that my illness was due to a lack of broccoli as opposed to excessive sodium intake? How does one quantify the percentage of my poor health attributable to a lack of exercise as opposed to a genetic predisposition?

Compare these examples to the situation with uncompensated health care, where the provider gives the uninsured an itemized bill, accounts for the amount of annual uncompensated care on its books, and budgets an increase in prices in order to recapture those costs. I submit that if Congress were to regulate broccoli consumption or health care memberships without any quantifiable factual basis the Supreme Court would have ample authority under the Morrison case to reject such fantasies.

Even if we adopted the formalistic rule that inactivity cannot be commerce, the purchase of health insurance would still be subject to congressional regulation under a separate theory: it would be non-economic activity subject to control as a necessary and proper part of an overall scheme of interstate regulation.

To quote Justice Stone in United States v. Darby: “The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end . . . .”  Under this principle Congress can regulate even noneconomic local activity, where that regulation is necessary and proper to a more general regulation of interstate commerce.  Justice Scalia said the same thing in 2005 in his concurrence in Gonzales v. Raich, which upheld federal regulation of marijuana grown for personal use.

The Darby case is instructive as well.  The Court concluded that Congress had power under the Commerce Clause to impose minimum wage and hour provisions for workers.  The Court further held that since the labor conditions of the workers fell within Congress’ Commerce Clause authority, Congress could also require employers to create and keep records that evidenced compliance with those conditions.  In other words, employers who were willing to comply with the congressional command could not argue that Congress’ power only reached their actual treatment of workers.  Instead, Congress could also require that those employers take the additional action of creating documents that reflect their compliance.  Congress could mandate the creation of documents as a necessary and proper means of enforcing its minimum labor conditions.

Therefore, under existing precedent, Congress may impose the individual mandate as either part of interstate commerce itself or else as noneconomic activity necessary to the regulation of interstate commerce.

Is there no limiting principle that defines the outer boundary of Congress’ power under the Commerce Clause?

From the beginning, John Marshall insisted that the only limiting principle on Congress’ exercise of this delegated power is the political process.  In defining the scope of Congress’ power in Gibbons v. Ogden (1824), Marshall said that “[t]he wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are . . . the sole restraints . . . to secure them from its abuse.”

In the almost two centuries since the Gibbons case, the members of the Supreme Court have returned often to the idea that once interstate commerce is affected, the political process itself comprises the sole limit on Congress’ lawmaking authority.

In 1922, Chief Justice Taft, in the case of Stafford v. Wallace said: “This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent.”

Later, writing to his law clerk about the breadth of the decision in Wickard v. Filburn, Justice Jackson said: “Federal power can, of course, discredit itself by attempting more than is just or can break down attempting more than it has capacity to organize or administer.  Its excesses and irresponsibilities it must answer for at the polls.”

Much of the objection to the individual mandate revolves around the concept of coercion.  Does the individual mandate transgress some line as an invasion of individual liberty?  Opponents of the individual mandate like to focus on the fact that it requires persons to take an action that they do not wish to take.

The same argument was made in opposition to the Civil Rights Act of 1964, which prohibits discrimination in privately owned hotels and restaurants.  Testifying before Congress, James J. Kilpatrick stated his view that that law went beyond the scope of the Commerce Clause:

Here the Congress proposes to impose a requirement to serve . . .  Here Clancy’s Grill and Mrs. Murphy’s Hat Shoppe are equated with AT&T.  The neighborhood drug store is treated as the gas company.  It must serve.  Within the realm of Section 202, the owner has no option, no right of choice.

Senator Norris Cotton of New Hampshire questioned whether under the Commerce Clause Congress could pass a law requiring restaurants to have fish available on Fridays or to have kosher food available at all times.  The response of Dean Erwin Griswold of the Harvard Law School to these complaints was simple: the only question was the constitutionality of the present bill; there was no need to defend every conceivable bill Congress might take up in the future.

The bootstrapping argument is similarly unconvincing. The argument is that by mandating a commercial transaction, Congress is creating the circumstance that gives it the power to regulate the transaction. There is nothing unusual or pernicious about a branch of the federal government defining the scope of its own power. The Supreme Court did so in Marbury v. Madison. The Executive Branch does so quite often in the realm of national security.

In plain vanilla Commerce Clause cases, Congress is engaging in a form of jurisdictional self-definition whenever it finds facts sufficient to support a substantial effect on interstate commerce.  The Court kept congressional fact-finding within reasonable bounds in the Morrison case, and I have no doubt that the Court could require Congress to point to actual and quantifiable cost-shifting across state lines should Congress decide at some future date to mandate the purchase of health club memberships.  Simply shouting the word “bootstrapping” adds nothing of significance to the debate over Congress’ power.

Some opponents object to the means chosen by Congress in the Affordable Care Act, and argue that Congress should accomplish its objectives by imposing a tax instead.  Arguments over the wisdom of the method chosen by Congress should be directed at that body, and not to the Supreme Court.

A straightforward application of the relevant precedent leads to the conclusion that the individual mandate falls within the scope of the Commerce Clause, as that Clause has been interpreted by the Supreme Court throughout its history — with the exception of one interregnum that the Court repudiated over 70 years ago.  Mr. Levy’s objections to the individual mandate begin with the premise that the mandate fails the test of the Commerce Clause as it is currently understood, but upon further examination it appears that his true objection is that he is philosophically opposed to the current test itself.

The Supreme Court faces a choice. It can evaluate the constitutionality of the individual mandate under our current understanding of the text and the precedent.  Or it can reject the assumptions that underlie our current Commerce Clause jurisprudence and chart a new course.  Any decision of the Court that reverses the fundamental understanding of the Commerce Clause as expressed in Wickard and Gibbons, and that leaves a zone of commerce subject to state regulation alone — or even worse subject to no regulation at all — would be a deliberate break with past precedent.  Beyond the creation of needless uncertainty, there is the very real risk that the Supreme Court would leave us with a Congress without competent powers for general purposes.



In preparing my remarks, I consulted the following sources:

George Washington’s toast is reported in Ron Chernow, WASHINGTON: A LIFE (2010).

The quotations from Justice Jackson’s memos to his clerk, and much useful commentary, can be found in Paul R. Benson, THE SUPREME COURT AND THE COMMERCE CLAUSE, 1937-1970 (1970).

A useful analysis of the Supreme Court’s detour into formalism is contained in Barry Cushman, Formalism and Realism in Commerce Clause Jurisprudence, 67 U. CHI. L. REV. 1089 (2000).

A response to the bootstrapping arguments deployed against the Affordable Care Act is made by Joseph Blocher in What We Fret About When We Fret About Bootstrapping, 75 LAW AND CONT. PROB. 145 (2012), also available on SSRN.   

This Post Has 19 Comments

  1. Debra Moore

    Thank you for clarifying this issue for me in terms of the constitutionality of the individual mandate. Was not Obama a Constitutional Law professor? I don’t think he is a man who does things haphazardly, especially something of this grand significance. It may not be of much importance in this state; however, the public needs to be reminded why this issue was even brought before the Court. It’s simply Romneycare on a larger scale.

  2. Mark Bentley

    Competent Powers for Congress for General Purposes? I think that might be way too vague a reference to base a paper off it. You could do anything with that.

  3. Terrence Berres

    Regarding the individual mandate, you said that “The law upheld in ‘Wickard’ forced farmers to enter the market and purchase wheat that they might otherwise prefer to grow themselves.” I’m not seeing anywhere in the opinion literally which says that point. If not directly in the opinion, what in the case are you saying had this effect?

  4. Ed Fallone

    Mr. Berres:

    A brief summary of the manner in which the Agricultural Adjustment Act led to a penalty being imposed on Mr. Filburn is located here:


    Those who have an interest in the Wickard v. Filburn case will find a wealth of interesting material on this site.

  5. Tom Kamenick

    @Mark – it was also made years before the Constitution was written.

    @Terrence & Prof. Fallone – this is still a substantial step beyond Wickard. The AAA did not force everyone to buy wheat.

    Question for Prof. Fallone – The general gist of justification given is “everyone will need health care, so we have the authority to make everyone buy health insurance.” Why not “everyone will need health care, so we have the authority to make everyone buy health care”?

    You seem to be saying that Congressional power under the commerce clause is non-justiciable. Would you then agree that Congress has the power to force us to purchase health care we don’t want?

  6. Nick Zales

    “There is nothing unusual or pernicious about a branch of the federal government defining the scope of its own power.”

    Oh yes there is. If government can define its own powers that renders the Constitution a meaningless piece of paper. That is exactly the point in history where we find ourselves now. The Founding Fathers concept of limited government is long gone. It has been replaced by omniscient government that “knows” what is best for people whether those people like it or not.

    Obamacare is more than a debate over the Constitutionality of a law. It is a philosophical crossroads. Accepting that Obamacare is constitutional is capitulating to the concept of a government with unlimited power. This goes beyond precedent and case law analysis. It goes to the question of whether there is really anything left in our Constitution. Has its soul been gutted? Is there anything left for people to believe in or are its terms just nice words that do not really mean anything?

    President Bush II once said the Constitution was “just a goddamn piece of paper.” His quote exemplifies the belief of those in Washington that there are no limits on governmental power. It can do whatever it wants. The fact that the Court has supported this theory in the past is no reason to support it now. We can either pull back from the brink or jump into the abyss.

  7. Ed Fallone


    George Washington supported enlarged federal powers over interstate commerce and had key meetings with James Madison in advance of the latter’s attendance at the 1786 Annapolis Conference on interstate trade disputes. Washington subsequently endorsed the Annapolis Conference’s call for a 1787 Convention to take place in Philadelphia “in order to render the constitution of the federal government adequate to the exigencies of the union.” By lending his prestige to these efforts, Washington played a very conscious and important role in the genesis of the Constitution and in that document’s delegation of federal power to regulate interstate commerce. All of this history is well known, voluminously documented, and recounted in Chernow’s biography at pp. 514-517. His views in 1783 were the same as his views in 1786. I am an originalist, and I always back up my interpretation of the constitutional text with evidence in the historical record.


    Mr. Levy also believes that we are at a philosophical crossroads. It may be that the Affordable Care Act represents a philosophical change in the way in which Congress regulates the national markets, much as the Civil Rights Act of 1964 represented a philosophical change and the New Deal Era legislation represented a philosophical change. Current precedent leaves it to the voters to decide whether these changes should be maintained. The role of the Supreme Court is to verify that Congress is in fact regulating interstate commerce, and not to act as a censor in order to strike down legislation that the members of the Court philosophically oppose.

  8. Debra Moore

    We can either pull back from the brink or jump into the abyss. I think that is a bit extreme. I do not view this law as “changing the constitution”. Society has changed since the Founding Fathers drafted the constitution I think most would agree. Changes become necessary as society changes. So many seem afraid that this would change the basic fundamentals rights of Americans as individuals of choice, and I understand that, however, I do not think that is the case here. The law is good for the nation as a whole and will certainly be instrumental in assisting in the country’s economic recovery.

  9. Nick Zales

    I appreciate Prof. Fallone and Debra Moore’s comments. Whether the law is good for the country or might help the economy are matters the court should not consider. Likewise, the court should not consider President Obama’s claims of “chaos” in Medicare unless the law is upheld.

    What the court should do is rule the Commerce Clause only applies to business transactions and not to individual conduct. The original intent of the clause was to keep individual states from enacting artificial roadblocks, such as taxes, levies or tariffs, that would hamper interstate trade. The clause was designed to allow for regulation of commercial conduct. If it applies to individual conduct outside of business, then there is no stopping point.

  10. Sean Samis


    You asked “Why not “everyone will need health care, so we have the authority to make everyone buy health care”?” If participation in this commerce is inevitable; “every one will need …” then compelling participation has no point. Everyone needs to buy food, what’s the point of telling them that they have to? Further, the point of the Individual Mandate is to make the purchase affordable to the greatest number, which advances a legitimate state interest.

    Compelling unnecessary or unwanted purchases does not advance any state interest that I can see and invades individual liberty. Lacking such a compelling or even legitimate purpose, any such attempt is not likely to survive a challenge. That, I think, answers your question about whether “Congress has the power to force us to purchase health care we don’t want?”

    More importantly, this reoccurring question seems to be making mountains out of mole-hills. The critical issue is not people being forced into unwanted health-care purchases, but people having a dire need for health-care and being unable to afford it until it’s too late, or only affording it by giving up other necessities. Opponents to the ACA seem to be trying to save us from an imaginary harm by exposing us to a real and present danger. I admit I don’t get that.

  11. Sean Samis


    Since Obamacare is justified by something far, far less that any “concept of a government with unlimited power” your concerns are unfounded. Obamacare fits well within the concept of a government of limited powers.

  12. Debra Moore

    No one was afraid of Romneycare in Mass. and it worked well. Granted thats an individual state, as opposed to the nation, however no one thought that it could set a precedent for the rest of the nation, as it well could have, and now that it has all of a sudden everyone is crying “foul”. Its a government takeover of the constitution! We’re losing our civil liberties! That is farfetched indeed.

  13. Nick Zales

    Check out the Tenth Amendment sometime. It reserves all powers not granted to the federal government to the states and citizens. If Massachusetts wants to engage in a health care program; it has the power to do so. The federal government, on the other hand, has no such powers. When it asserts them, it is stealing them from the state and the people.

    The concept of regulating people doing nothing as being involved in commerce is a perversion of the Commerce Clause. Obamacare seeks to expand and further cement in our law the concept the federal government has unlimited general police powers over all aspects of human life. The Commerce Clause is simply a fig leaf.

  14. sean samis

    Nick, I don’t believe “perversion” is a legal argument. The ACA regulates interstate commerce everyone does or wants to be able to do something about. No “unlimited” general police powers need be invoked to justify the ACA, much less powers “over all aspects of human life” Such alarmist claims have no merit; only actual legal arguments matter.

    The Tenth Amendment tells us nothing about this question until the limits of Congress’s powers are settled, which it is not.

  15. Debra Moore

    Is it the right of the state then to be able to violate the Constitution, for example in voter suppression? Denying people the right to vote, disguised as voter fraud prevention? Granted this is a debate on Obamacare, I just wanted to make that point. The Fifteenth Amendment proposed on 2/26/1869 and ratified on 2/3/1870 says: The right of citizens of the United States to vote shall NOT be denied or abridged by the United States or by any State, due to race, color, or previous condition of servitude — Oh! its okay because, they’re doing so not because of any of these reasons, but because of trumped-up scare tactics on a non-existent voter fraud problem. (Sorry that’s another debate.) But I think we should be more concerned about what actually is taking place, rather than going over the top about what might happen in overstepping the boundaries of the Constitution as it relates to Obamacare, which is unfounded.

  16. Terrence Berres

    Professor Fallone:

    That that part of a farmer’s wheat produced for consumption on the farm was subject to the overall quotas under that Act was clear in the court’s opinion. What I’m asking, though, is how that “forced farmers to enter the market and purchase wheat that they might otherwise prefer to grow themselves.” It seems unlikely that a farmer would voluntarily sell wheat on the open market in order to use the proceeds to buy wheat on the open market for consumption on the farm, and I’m not seeing what in the opinion says the Act mandates he do so.

  17. Edward A. Fallone

    Mr. Berres:

    Mr. Filburn had already grown his alloted quota of wheat under the Agricultural Adjustment Act. He grew additional wheat beyond his quota and used it to feed his cattle. He was fined. He argued that Congress could not regulate wheat that he grew for his own use.

    The Supreme Court ruled that Congress could place limits on the amount of wheat grown by farmers and that Congress could also require farmers to purchase any wheat in excess of their quota on the national market — even if, like Mr. Filburn, that farmer preferred to grow the excess in their own field.

    Note that the Court did not rule that the AAA required farmers to buy wheat in the first instance. Filburn could have let his cows eat grass. However, if a farmer wanted to feed his cows wheat and had already met his quota then he had to either buy the excess wheat on the market or else pay the penalty.

    None of this background is disputed, and even conservative critics of the Wickard decision agree that this is the holding of the case.

    Critics of ObamaCare typically argue that Wickard v. Filburn is misguided and that this precedent should be overruled. That’s the whole point of my blog post. Opponents of ObamaCare don’t just argue against this one law, they advocate an interpretation of the Constitution that requires the rejection of a large body of Commerce Clause jurisprudence.

    The relevant Commerce Clause precedent supports the constitutionality of ObamaCare. A ruling striking down the Affordable Care Act on the grounds that it exceeds Congress’ authority under the Commerce Clause would be a break with precedent that turns back the clock to at least 1942. Depending upon how the Supreme Court defines the scope of Congress’ “plenary” authority, it is also possible that a decision striking down the ACA could turn the clock back to 1824.

    On the other hand, the Court could simply follow its own precedent and uphold the Affordable Care Act.

  18. Terrence Berres

    Professor Fallone:

    First, aren’t you saying that a farmer might regard himself as compelled by circumstances that result from his quota and his earlier choice to exhaust it growing wheat for the market? If so, then I’m not seeing how that is a mandate in the sense of that in ObamaCare.

    Second, whatever “critics of ObamaCare typically argue”, Mr. Clement didn’t argue that Wickard v. Filburn should be overruled, did he?

  19. sean samis


    I’d not expect Wickard to land squarely on the points ACA makes since health care and agricultural sales are not exactly the same.

    Wickard does stand for the principle that activities that seem “noncommercial” such as growing one’s own wheat actually impact commerce and can be regulated by Congress to further a legitimate commercial purpose. Wickard had to either keep for his own use wheat he had grown within his quota (selling less) or he had to buy additional wheat off the market. Controlled production is and was essential to stable prices.

    With the exception of those rare individuals who are healthy up to the day they suddenly die, everyone will buy health care. Since the timing and magnitude of these costs are unpredictable and the “commercial” need compelling, rational consumers purchase health insurance to provide for this inevitable and sometimes extraordinary expense. To ensure that the largest number of persons can afford health care when they inevitably need it, it is within Congress’s power to require the purchase of health insurance.

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