Chris Hayes talks to Columbia Law Professor Gillian Metzger about the Commerce Clause and the individual mandate:
Right. Basically, if you are going to have an affective system of regulation of controlled substances, you can't pull out from that system sort of locally grown, non-commercially purchased marijuana for personal use without a real risk that it will seep into the broader economic system. And so what [Antonin Scalia] said was, “You can regulate that because what seems to be a local, noncommercial activity is actually part of a larger, economic class of activities, and you have to regulate it to have affective regulations.” And that seems a very easy analogy here.
You've got provision of health care, provision of health insurance, that's clearly economic activity. Quite honestly, non-purchase of insurance has a lot of economic impacts as well. If you get sick the impact in terms of emergency care, the impact in terms of lost productivity, in particular, the affect on the risk pools and the cost of insurance elsewhere and the health that people pull out, these are all economic affects.
And, finally, if you don't have a requirement that people purchase insurance, I don't think that the health reform system that was enacted is going to work. If you're going to prevent discrimination against people on the basis of pre-existing conditions and mandate that they be able to get insurance, then you have to require people to also purchase insurance or pay a fee because otherwise the logical thing to do is to wait until you get sick and then get the insurance, right? So it would be prohibitively expensive.
One of the reasons liberals seemed so initially dismissive of challenges to the individual mandate is because, as Hayes and Metzger note, of the prior jurisprudence giving the government this kind of really broad power, especially when it comes to taxation. And I think if the court were to rule solely on what the court has previously said, there wouldn't be any question about whether or not the mandate is constitutional. But conservatives have a really simple argument contesting the mandate, which is that if the government can "force" you to buy medical insurance for the above reasons then it can force you to buy anything, which put plainly to your average person, sounds really ridiculous. Of course, back when Republicans supported the mandate, they didn't think it was so ridiculous.
