Julian Sanchez on the Commerce Clause

December 14th, 2010

Julain Sanchez:

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

I find it difficult to understand why liberals have no objection to the federal government requiring every person to purchase a private good, for simply living here, but object strenuously to banning marijuana or gay marriage. The mandate forces, by power of law, every individual to proactively do something, whereas banning marijuana simply requires them not to do something. If anything, the mandate is a greater violation of our liberty, yet the only sound emanating from the left is deafening silence.

My suspicion is liberals support the mandate simply because it’s useful for something they find desirable—increasing health insurance coverage for more people—and are dismissing any concerns about it for that reason. But they should be concerned; if liberals support social freedom (which I’m sure most would say they do, gay marriage, marijuana, pornography, et al), then the mandate is quite worrying. If the government can force individuals to purchase a private good merely for being a citizen, what can’t they force us to do? There’s very little they can’t do under a commerce clause that is as widely interpreted as it has been.