Healthcare update

The court should rule that this individual mandate is unconstitutional. To do otherwise would give Congress almost unlimited power.

The court's mystique and reputation for silence means there have been no special warnings from the justices for employees not to spill the beans on the health care decision. It's not that the health care decision isn't important. It's that clerks, secretaries, aides, janitors, and all of the other staff know they are not supposed to talk about anything the court does until the official announcement.

The government's tax-clause argument is similarly flawed. It asserts that the individual mandate isn't really a restriction on freedom, it's just a tax; violators are forced to pay a fine. If this logic is correct, it would justify any mandate enforced by a monetary fine, whether it be for broccoli, a car or anything else. Every lower court to have considered this constitutional issue has ruled that the mandate is not a tax but a penalty. As President Barack Obama acknowledged in 2009, "for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase."

he commerce clause gives Congress authority to regulate interstate commerce. Since the 1930s, Supreme Court decisions have interpreted the commerce clause broadly. But every previous case expanding the commerce power involved some sort of "economic activity," such as operating a business or consuming a product. Failure to purchase health insurance is neither commerce nor an interstate activity. Indeed, it is the absence of commerce.

If the "necessary and proper" clause allows Congress to adopt the individual mandate, the same logic would justify almost any other mandate. Virtually every mandate has some economic effect and could be portrayed as a "useful or convenient" way to regulate some market. A broccoli mandate could be defended as an effort to regulate the market in food.

The threat to liberty raised by this case isn't just theoretical. Many industries would be happy to lobby for laws requiring people to buy their products, and Congress has a long history of enacting special-interest legislation.