| badgenome said: Chiefly because the much abused commerce clause has been used justify stopping people from engaging in certain activity but has never been used to justify forcing people into partaking in economic activity. |
Reasonable, especially since I tend to think the commerce clause is often stretched too far.
That said, I can also see the counterarguments. For starters, there is already regulated economic activity when utilizing health care. No one disputes that this area is legitimately susceptible to federal regulation. Add to that how, in the US, some amount of health care is nearly a right; hospitals are forbidden by law to turn away patients regardless of inability to pay.
In other words, there are already health care costs associated with the lack of having health insurance, the health care costs of the uninsured are already being passed on to others, and the substance of that health care is already subject to regulation. It does not seem to me like much of a legal stretch to say that it is permissible to regulate economic activity that is demonstrably impacting already-regulated economic activity.
Moreover, it seems to me that while the word "mandate" is used with regards to this legislation, that word is being misapplied. It is perfectly possible to continue to go without insurance under this Act. You will suffer a tax penalty, yes, but the constitutionality of tax penalties has been consistently upheld: think of the early withdrawal tax on 401
s, or the gift tax. Under that rubric, I have a harder time seeing how this law would be unconstitutional.
Of course, it's not completely cut and dried. Those who fall under the economic cut-off line are still technically subject to the law, although the fact that they can not get penalized with the tax makes the point realistically (but not necessarily legally) moot.
Overall though, I'm inclined to think that the law is constitutional. It will probably be a 5-4 decision though. Because these days, what isn't?
