Opinion: Can We All Be Drafted Into Health Care Reform War?

(Dec. 16) -- Is it "necessary and proper" for Congress to draft every American into a nationwide health insurance pool? The Obama administration claims it is and will be making this argument in a Florida federal court Thursday after having lost its case in a separate federal court earlier this week.

Most non-lawyer Americans must wonder how coercing citizens to buy health insurance could possibly be constitutional. Never before has the federal government claimed the power to force citizens to buy anything from a private party. If Congress can mandate the purchase of insurance, what prevents Congress from forcing us to buy other products like, say, a Chevy Volt?

How did we get to the point that federal officials presume the power to treat citizens like draftees into the military?

To make its case, the Obama administration relies on the Constitution's Commerce Clause and the "Necessary and Proper" Clause, sometimes called "the Elastic Clause." The Commerce Clause gives Congress the right to regulate interstate commerce. The Necessary and Proper Clause makes clear that Congress can use "necessary and proper" means to implement other powers such as the Commerce Clause, thus its description as "the Elastic Clause."

Since the mid-1930s, Congress has had a fairly free hand under the Constitution's Commerce Clause. The Supreme Court has said that the clause gives Congress the right to regulate any commercial activity that has a "substantial effect" on interstate commerce, even if the commercial activity itself occurs only within a single state. Congress became accustomed to regulating almost anything simply by claiming some slight connection to interstate commerce.

Two Supreme Court cases decided in the 1990s, however, declared certain federal statutes unconstitutional despite a supposed connection to interstate commerce. The court resurrected the principle that Congress has only limited powers under the Constitution, not a "general police power."

The Obama Justice Department nevertheless relies on the two most expansive Supreme Court cases under the Commerce and Necessary and Proper Clauses. One of them, Gonzales v. Raich (2004), upholds the federal prohibition of growing marijuana even for medical use. The rationale: Congress can regulate commerce within a state if "necessary" to control a national market in a commodity.

But the federal laws in both cases cited by the Obama administration regulated crops, not people. Yes, they prohibited certain individual actions, such as growing a commodity for private use. But they didn't require individuals to engage in commerce.

So does the failure to buy unwanted products also affect interstate commerce? The Obama Justice Department argues that it does. It says that one's failure to buy health insurance "substantially affects" interstate commerce.

But by this reasoning, Congress could legitimately try to end a recession simply by ordering all of us to purchase more products. After all, the failure to buy a product reduces potential profits and employment. If enough people reduce their purchases, the economy certainly does suffer.

In effect, then, health care reform's individual mandate for the first time treats Americans as if we are "commerce," or objects affecting commerce.

Under the Commerce Clause's language, Congress only has power to regulate "commerce" among the states. Human beings engage in commerce, but we aren't ourselves treated as "commerce."

Congress can certainly stop activities that "substantially affect" interstate commerce. But it's quite a different matter to force human beings into commerce. To do so is to use human beings as a means -- as objects -- that will supposedly improve the commerce activity related to health care.

Many Americans have complained that the federal government treats "we the people" as their employees, rather than vice versa. With the individual mandate, we'd be reduced even further -- to mere objects of or affecting commerce.

John S. Baker Jr. is the Dale E. Bennett professor of law at Louisiana State University.