Health Care and the Constitution | Roger Pilon | Cato Institute: Commentary

Health Care and the Constitution | Roger Pilon | Cato Institute: Commentary: "Since the New Deal, the Supreme Court has held that Congress's power to regulate interstate commerce amounts to a power to regulate anything that 'substantially affects' that commerce — and a power to order any means that may be 'necessary and proper' for that regulation. Because uninsured people who seek free emergency-room care substantially affect interstate commerce, Congress can regulate that behavior by ordering those people to buy insurance.

But the implications of that constitutional reading, Will notes, are boundless. If Congress can order you to buy insurance, why stop there? It can order you to exercise, and to eat healthy foods, etc. More disturbing still, it means that the Constitution itself and judicial review under it are no more."

"A reading of the commerce power that effectively renders many of Congress's other enumerated powers superfluous, or that is inconsistent with other constitutional provisions, cannot be right. And concerning history and function, the power was given primarily to ensure the free flow of goods and services among the states in light of the protectionist measures states had begun to erect under the Articles of Confederation. It was, that is, a limited "free market" power — precisely opposite its understanding today."