Obamacare is unconstitutional, but that should be easy to skirt

As Majority Leader Harry Reid’s health care bill moves to the Senate floor, the debate about Obamacare finally begins in earnest.

Shouldn’t the Constitution be part of that debate? By what authority, after all, could Congress force all Americans to buy health insurance?

In a recent news release, House Speaker Nancy Pelosi said constitutional objections to the individual mandate are nonsensical because the power of Congress to regulate health care is essentially unlimited. We eagerly await your orders, ma’am!

Pelosi is wrong, but that doesn’t mean the Supreme Court can be counted on to strike down Obamacare. Legislators have an independent obligation to consider the constitutionality of the laws they’re debating, and the individual mandate is flagrantly unconstitutional.

To answer the question, “by what authority?” Reid’s bill offers the Commerce Clause, the go-to provision for friends of federal power.

It was a modest measure designed to regularize crossborder commerce and prevent interstate trade wars. The Founders would have worried more had they known it would eventually become a bottomless fount of federal power. In 1942’s Wickard v. Filburn, the Supreme Court held that commerce power was broad enough to penalize a farmer growing wheat for himself on his own farm.

That farmer, Roscoe Filburn, ran afoul of a New Deal scheme to prop up agricultural prices. The fact that he wasn’t engaged in interstate commerce, or commerce of any kind, was beside the point. If many others similarly situated engaged in the same behavior, it would substantially affect interstate commerce and frustrate Congress’ designs.

In its “findings” section, Reid’s bill hits all the jurisprudential buzzwords: The individual mandate substantially affects interstate commerce and regulates activity that is commercial and economic in nature. Activity like standing around without health insurance? Apparently so.

Yet, as the Congressional Budget Office noted in a 1994 evaluation of Clintoncare, an individual mandate would be unprecedented. The government has never required people to buy any good or service as a condition of lawful residence in the U.S.

If the Supreme Court eventually has to rule on the mandate, don’t be surprised if the rationalization goes something like this: Encouraging people to buy a product is really nothing new. Wickard shows that Congress can use the commerce power to force people to carry out transactions they’d rather avoid.

Ironically, the Bush administration helped improve the individual mandate’s chances of being upheld by fighting for commerce power broad enough to allow the prosecution of medical marijuana patients growing for their own consumption.

In Gonzales v. Raich in 2005, the high court reaffirmed Wickard, noting that Congress can regulate purely intrastate activity if it concludes that failure to regulate would frustrate the comprehensive regulatory scheme Congress has in mind.

The individual mandate surely counts. Since Obamacare also bars insurers from denying coverage for pre-existing conditions, without a requirement to purchase insurance, the healthy would have an incentive to drop their coverage and enter the market only when they got sick.

The attitude of supporters of national health care echoes words famously expressed by President Franklin Roosevelt in 1935. Trying to push through a key New Deal measure, Roosevelt wrote to an important congressman: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.”

President Barack Obama fancies himself Roosevelt reincarnated. In this, at least, he has a legitimate claim to the legacy.

Gene Healy is a vice president at the Cato Institute and the author of “The Cult of the Presidency.”

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