Wednesday, December 08, 2010

Everyone Loves a Parade

Gerard N. Magliocca

Except a parade of horribles. A common criticism of Commerce Clause doctrine, especially in the current litigation over the individual mandate, is that it basically gives Congress a general police power. If Congress can make us buy health insurance against our will because that substantially effects interstate commerce, then doesn't that mean that the feds can also make us exercise three hours a day, eat tofu twice a week, or otherwise micromanage our lives to improve health? The common response to this slippery slope argument is that Congress would never actually impose these sorts of intrusive requirements, but that is not much consolation to those concerned about the scope of federal power.

It is worth pointing out, though, that states can already do all of these "nanny state" things under their police power unless there is a fundamental right to be free from such restraints. Yet nobody seems especially worried about that prospect. In other words, you don't hear many people saying that the Massachusetts health insurance mandate is scary (let alone unconstitutional) because it represents the thin end of the wedge for more restrictions on personal liberty. Now it is true that a federal law is worse than an identical state law in this respect. Federal regulations are much more difficult to escape by moving and have a much greater impact. Moreover, there is a good federalism reason for allowing a state to try a crazy experiment--that might expose its folly and stop the idea from gaining further traction.

The point is that the individual mandate may exceed Congress's authority under the Commerce Clause, but thinking that this is true because the consequences would intolerable probably isn't a a good argument, because those same consequences are already possible under state law.

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