In the wake of the Affordable Care Act decision, competing narratives have emerged on the significance of the Court's holding that the Commerce Clause does not permit regulation of inactivity. According to Randy Barnett, David Rivkin and other observers, the Court may have upheld the individual mandate to purchase health care coverage under the taxing power, but Congress lost an important legislative option when the Court concluded that purchase mandates cannot be justified under the Commerce Clause.
In the alternative view that also has been taken by Einer Elhauge, John Yoo and others, Congress lost nothing in the decision. Not only was the Affordable Care Act's mandate upheld, but a majority of the Court reaffirmed its past 75 years of Commerce Clause doctrine, including Wickard v. Filburn. Congress still can enact mandates, through either its Commerce Clause power or its taxing power. The barriers to purchase mandates are political, not constitutional.
Which narrative is correct? We can test them by positing hypothetical purchase mandates and seeing whether they would survive the majority's analysis in NFIB v. Sibelius. I'll start the challenge with some examples from the pre-decision debate:
1. Justice Antonin Scalia wondered whether Congress could enhance the health of Americans by requiring them to purchase broccoli. Yes--Under the commerce power, Congress can require groceries and restaurants to include broccoli with every sale of food.
2. Justice Samuel Alito wondered whether Congress could require people to carry burial insurance. Yes--In fact, there already is a small, lump sum death benefit as part of Social Security.
3. Judge Roger Vinson wondered whether Congress could require people to buy GM cars to protect the government's ownership stake in the company. Yes--Congress can tell service stations that they may sell gasoline only to owners of GM cars.
What can't Congress make us buy by regulating us once we're engaged in some kind of economic activity, or by exercising the taxing power?