The Encyclopedic Unconstitutionality of the Individual Mandate

My parents got me a set of Encyclopedia Britannica when I finished middle school; I had graduated from the “young people’s” reference collections, they told me, so it was time to move to “adult” research materials. (I should point out to readers who are currently students that “encyclopedias” were “books” that presented a fairly exhaustive collection of basic knowledge about the world; I got my set a few years before the internet put such information at anyone’s fingertips for free.) And so it was with nostalgic delight that I accepted an invitation from Britannica’s modern online incarnation (to which David Boaz has contributed many short essays) to provide a short response — an op‐​ed, really — to an argument Penn law professor Kermit Roosevelt made supporting the individual mandate’s constitutionality.


Those who have followed Cato’s work on Obamacare won’t find much new here, but here’s an excerpt:

The Constitution simply does not permit the government to compel citizens into transactions to remedy what would otherwise be an economic hole in a given piece of legislation. Although the Necessary and Proper Clause allows Congress to adopt reasonable means to regulate interstate commerce, it is not a blank check permitting Congress to ignore constitutional limits by manufacturing necessities. Indeed, any law—“necessary” or otherwise—that would transform Congress’s authority into an open‐​ended power to legislate for “the general welfare” is unconstitutional.


While government lawyers emphasize the “uniqueness” of the health care market and the wisdom of the legislation at issue, “this case is not about whether the Act is wise or unwise … in fact, it is not really about our health care system at all. It is principally about our federalist system, and … the Constitutional role of the federal government.” Florida v. U.S. Dept. of Health & Human Services (Judge Roger Vinson’s decision striking down the individual mandate and with it all of Obamacare, Jan.31, 2011).

Read the whole thing.