As everyone knows, the dispute over the individual mandate under the Patient Protection and Affordable Care Act (also known as ObamaCare) is due before the Supreme Court. The case will be argued this coming March, with a decision to be expected by June 2012—just in time to ignite political passions before the November presidential election. At this point, the bet has to be that the mandate will be affirmed, especially in light of the recent decision by Judge Laurence Silberman of the District of Columbia in Susan Seven-Sky v. Holder, which held that the individual mandate—whereby all persons must either purchase health-care insurance or pay a government penalty—falls within the power of Congress to regulate interstate commerce.
The political tea-leaves could not be clearer. Judge Silberman is a distinguished conservative jurist, whose views could easily be read to presage the votes of Justices Scalia and Kennedy. His decision represents a defection from the conservative to the liberal position on this issue, which puts the challengers on an uphill battle. In this essay, however, I do not want to speculate about the political issues. Instead I will address the merits of case. The key point is that the debate over the individual mandate is a diversion from the central historical issue. The real objection to the health-care mandate is that it puts Congress deeper in the business of regulating health care when it really should have, under our original constitutional design, only a marginal role. In making this broad claim, it is necessary to expose the deep cleavage between the Commerce Clause as it came down from the Constitutional Convention in 1787, and the faux Commerce Clause that emerged out of the New Deal.