While I agree with Calvin Massey that Linda Greenhouse could have articulated the case in favor of the individual mandate more effectively, I think she’s correct in her bottom line about the challenge to the mandate.
In particular, the constitutional challenge ultimately rests on a flawed premise—that if Congress can require people to buy a good or service solely because they are living in the United States, the commerce clause will be converted into an expansive power to compel just about any purchase. Today, we must buy health care coverage, tomorrow we might have to buy broccoli or GM cars.
But in fact, invalidation of the individual mandate would protect the public from only a few purchase mandates—mandates to purchase some kinds of insurance.
To be sure, a ruling against the mandate would mean that Congress could not force us to go out and buy broccoli or GM cars. But the government already has other ways to make us buy those goods. Congress still would have the power to require grocery stores and restaurants to include broccoli with every sale, and it still would have the power to require automobile dealers to sell only GM vehicles. If Congress really wants to make us buy something, it can find a voluntary economic transaction to regulate. That the individual mandate is not tied to a voluntary economic transaction simply reflects the fact that health care insurance must be procured in advance of the time when health care is needed.
Perhaps this demonstrates that the Court needs to curtail the ability of Congress to regulate the terms of economic transactions. But then the justices would have to invalidate all kinds of laws that impose important conditions on economic transactions. We can’t buy a new automobile without seat belts, a new baby’s crib without safety latches, or a new television set without a V-chip. There is no way for the Court to draw a principled line between requiring sales of seat belts with every sale of a car and requiring sales of broccoli with every sale of food (say with an exception if you could prove you had already bought broccoli that day or week).
In any event, history tells us that Congress has exercised considerable self-restraint when it comes to purchase mandates. As the 11th Circuit pointed out, Congress never has required homeowners to purchase flood insurance as a condition of building a house in a flood plain, even though the Constitution clearly would allow for that and even though taxpayers end up footing the bill for flood relief. When all is said and done, Obamacare critics have not explained why we need the courts to protect us from being overwhelmed by purchase mandates.