Is The Mandate Constitutional?

Here is an excellent debate on the constitutionality of Congress mandating we purchase health insurance or be penalized.

After reading through Mr. Chemerinsky's Commerce Clause justifications for a mandate, I find them unconvincing.

The Commerce Clause, upon which Mr. Chemerinsky bases his mandate claim, concerns regulating commerce among the states. But the purchase of health insurance is, by law, strictly an intra-state economic activity. Since none of us can cross state lines to purchase health insurance, where is the interstate commerce that is affected? Insurance is a service, not a commodity, like wheat, that I can possess and sell in another state. My health insurance policy exists as a contract recognized and governed by the laws of my state - it is not enforceable in another state, and therefore has no value or standing in another state.

While the purchase of health insurance is an economic activity, and therefore (in this case intra-state) commerce, the failure to purchase is an economic inactivity, and therefore is clearly not commerce - intra-state or otherwise. Mr. Chemerinsky seems to be saying that the Commerce Clause gives Congress almost unlimited power - including the power to compel an economic activity for it to regulate! As Mr. Rivkin points out, United States v. Lopez and United States v. Morrison show that the Commerce Clause does not provide Congress with such such unlimited power.

And that's before we get to the 9th and 10th Amendment arguments against a mandate. If the Pelosi/Reed/Obama notion of socialized "reform" becomes law, I think the mandate will not long survive Constitutional challenge.