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InsiderOnline Blog: August 2011

We Still Have a Government of Enumerated Powers

In striking down Obamacare’s individual mandate on Friday, the U.S. Court of Appeals for the Eleventh Circuit noted that the government’s defense of the mandate left no room for limits on what Congress may regulate under the Commerce Clause. That’s a problem, noted the court, for a government that is supposed to possess only enumerated powers:

In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power. …

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.

Posted on 08/16/11 06:21 PM by Alex Adrianson

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