ObamaCare and the Commerce Clause

The federal government’s position expands the Commerce Clause — already stretched to the breaking point — to permit federal regulation of “the decision not to buy health insurance.” But calling inaction a “decision” does not transform it into regulable economic activity. As David Rivkin, attorney for the states and other plaintiffs in the case, argued, the government had the permissible alternative of regulating health-care payment at the point of purchase, saying for example that no one could pay for services except using insurance. The government claimed that waiting to regulate until someone actually did something was splitting constitutional hairs, but that hair may be all that is left of the Commerce Clause’s limitation on government power.


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