OK, let’s be old fashioned and start with what the Constitution says. After the Preamble, the very first sentence of the Constitution says “All legislative powers herein granted shall be vested in a Congress of the United States.…” And again the Necessary and Proper Clause gives Congress the power “To 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 Tenth Amendment is not required to see that Congressional power must be found somewhere in the document.(“Tenthers”? What’s next? “Firsters”? “Necessary and Proper Clausers”? Enough with the derogatory labels, already.) So where in the document is the power to mandate that individuals buy health insurance?
The power “to regulate commerce .… among the several states”? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both “necessary and proper”). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity.
The “spending power”? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are “necessary and proper for carrying into execution the foregoing powers.” So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?
But following the text of the Constitution is so Eighteenth Century.
Professor Jost tells us that “a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform.” So the Supreme Court gets to rewrite the written Constitution as we go along.
Never mind Dred Scott, Plessy, Korematsu and other not‐so‐famous Supreme Court “mistakes.” The Constitution was what the Supreme Court said it was — until it changed its mind. And the Supreme Court has certainly not limited either the enumerated commerce power or the implied spending power to the original meaning of the text.
Fine. But has the the Constitution of the Supreme Court been extended to include mandating that individuals buy insurance? Professor Jost admits “the absence of a clear precedent.” Really! So what has the Supreme Court’s Constitution told us about the Commerce Clause Power? Professor Jost cites the medical marijuana case of Gonzales v. Raich.
As Angel Raich’s lawyer, who argued the case in the Supreme Court, I think the Court erred (6–3) in reading the interstate commerce power broadly enough to allow Congress to prohibit you from growing a plant in your back yard for your own consumption. By all accounts, however, this is the most far reaching interpretation of the Commerce Power ever adopted by a majority, exceeding the reach of the past champion, Wickard v. Filburn. But even the six Justices in the majority did not say that Congress had the power to mandate you grow a plant in your back yard. Do you think a majority would find that power today?
Perhaps. But under Professor Jost’s approach to constitutional law, we must await the Supreme Court’s ruling before we know what “the Constitution” requires or prohibits. Until then, the Supreme Court’s First Amendment still gives even “two former Bush officials” the right to publish their opinion that the written Constitution delegates to Congress no such power, provided of course they are not trying to influence the outcome of a federal election. Maybe a bare majority will decide this matter by reviewing the text. Stranger things have happened. After all, without any precedent standing in their way, a majority of the Supreme Court decided to follow the original meaning of the text of the Second Amendment in DC. v. Heller.
And when we are done examining Congress’s power to mandate that you buy a particular service — or pay a fine, er “tax” — we can then consider its power to restrict the exercise of a person’s fundamental right to preserve his or her life.