The Supreme Court heard argument this morning on the constitutionality of the Affordable Care Act's minimum coverage position. The audio is available (almost exactly 2 hours long), and it's an interesting listen. I wasn't trying to track votes (I'm sure plenty of pundits have issued their predictions), but rather to get an idea of the thread of the argument. And I've come away with this: it's still an easy case, if we look at the Constitutional text.
Note, of course, that I'm not saying it'll be an easy case for the Supreme Court. The Justices, like lots of highly-trained lawyers, are terrible at looking at the Constitution: they get far too caught up in precedent. But let's review the text:
The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.In other words, there are three questions we must ask to determine if a law is within Congress's power under the Commerce Clause. (1) Is the law a regulation? (2) Is it regulating commerce? (3) Is the regulated commerce with foreign nations/interstate/with Indian tribes?
(1) Is the minimum coverage provision regulation? Yes. Bear in mind that regulation does not only limit action, it can also command it. (2) Is it regulating commerce? Yes. It regulates (orders) the purchase of health insurance. The purchase of health insurance is commerce. Is the regulated commerce interstate? Yes, the health insurance market is interstate (a fact not disputed by any parties in the case).
Does that mean that Congress can compel purchases in any interstate market? Subject to other constitutional restrictions (the First Amendment and the Fifth Amendment spring to mind), yes. Will they start issuing purchase mandates left and right? Of course not. That's why we the People retain the authority to vote them out of office.
Does the Commerce Clause, under this eminently obvious interpretation, give Congress an unlimited police power? Of course not. They cannot order people to attend school, unlike the states (attending school, unlike enrolling/paying for school, is not commerce, so it fails on factor 2). They cannot ban public nudity, or disorderly conduct, or institute curfews. They cannot institute most of the crimes in state codes. They cannot regulate local markets.
None of the lawyers made this argument. A few of the Justices seemed to be grasping at it. But it's the right way to go, rather than following the appellants who see a Commerce Clause power grown out of control and try to institute a limit completely devoid of grounding in the Constitution.