The Health Care Lawsuits Continue

Tom Maguire makes a good point in discussing the Virginia lawsuit against Obamacare and the federal government's stance that the individual mandate is permissible under the auspices of the Commerce Clause...

Obviously Congress can force people to save for their retirement by way of the Social Security tax, regardless of their own sense of an optimal lifetime saving strategy. And if health care were a new universal entitlement funded by a new tax, there would not be any traction with the argument that people might want to opt out of both the insurance and the tax.


But if pigs had wings, jihadists would fly them into buildings. The new insurance is not a tax and it is not being defended under Congress' taxing power. And if the Constitution really grants Congress the power to regulate any activity or inactivity under the Commerce clause, well, what limits are left to their power?


...people in the US fret about the demographics of Social Security and Medicare and wonder where we can get the influx of young workers to pay for the elderly.


Since the decision to not have a baby clearly impacts both national defense and the health of our economy, it is obvious that under the Commerce Clause Congress can regulate abortion, and ban it. Right?


And don't even get me started on sexual practices. Comnsidering what this country spends on HIV and AIDS research, surely the Commerce Clause grants Congress vast power to regulate sexual habits. Or it ought to, right? A decision to not use a condom impacts all of us, and clearly could be criminalized, or at least taxed.

Obviously, Maguire is positing a parade of horribles... except that it's unclear how or why we should draw the line on actions Congress can take pursuant to the commerce power. Tom Coburn's question to Elena Kagan on whether Congress can mandate that people eat three helpings of vegetables a day looks more and more prescient in this regard.

I know most people were betting that the Supreme Court was unlikely to rein in the Commerce Clause, and I'd still guess against it. Clearly, the Obama Administration's politically motivated decision to position the new health care entitlement as something other than a tax might be its downfall, but it's possible the Court might choose to justify the mandate as possible pursuant to the taxing power and ignore the inconsistency with regard to the stated rationale for the act. But it's a lot closer as a question than most legal scholars thought.