Since an individual health insurance mandate is not even arguably a regulation of a channel or instrumentality of interstate commerce, it must either fit in the third category or none at all.Predictably, Congress has cited only this third basis.
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This "personal responsibility" provision of the legislation, more accurately known as the "individual mandate" because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level.
Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny.
The Commerce Clause, set forth in Article I, section 8, grants Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." From the Founding, both Congress and the Supreme Court have struggled to define the limits of that authority, but it has always been understood that some limit exists beyond which Congress may not go.
To be sure, the Supreme Court has been deferential to congressional claims of authority to regulate commerce since 1937.
Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service. Another word for "novel" is unprecedented, which is literally true: There is simply no legislative or judicial precedent for this claim of congressional power.
In the absence of binding judicial precedent, however, the current Supreme Court is unlikely to stretch the commerce power even further than it already has.But it is very unlikely that the Court would extend current constitutional doctrines, or devise new ones, to uphold this new and unprecedented claim of federal power.Constitutional Overview In reaction to states that were enacting trade barriers and violating the rights of their citizens, those who drafted and ratified the U. Constitution were determined both to constrain the powers of states and, at the same time, limit the power of Congress.The Constitution's Necessary and Proper Clause similarly grants Congress the power "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed: "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." And in his canonical opinion interpreting the Necessary and Proper Clause, Chief Justice Marshall insisted that "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the [national] government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power.Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine.The Supreme Court's "Class of Activities" Test In the last seventy years, the Supreme Court has applied a relatively straightforward judicial test to determine whether a federal statute is within the commerce power of Congress.