In April 2006, Massachusetts became the first state in the nation to mandate that all adults purchase health insurance. The government unfortunately is considering obliging all individual to purchase health insurance which would just be an exceptional form of federal action. My judgment with this matter would have to be that it’s a constitutional request since the federal government has argued that the individual mandate is supported by three delegated powers – the powers to tax, to regulate interstate commerce and to adopt laws that are “necessary and proper” for effectuating other pwers.1 However, article 1 section 8 gives Congress the power to legalize commerce which makes the administration believe that it is a “social good.” Choosing not to purchase health insurance for whatever reason is an economic decision that has an economic impact on others—families (dipping into savings, loans, bankruptcies,) hospitals (use of emergency department, uncompensated care), insurance companies (adverse selection, the need for higher premiums, restrictions imposed on those with or needing insurance), people purchasing insurance (higher premiums), and society at large (higher taxes, higher costs for health care, higher premiums.5 All of these, it is believed have a cumulative effect on interstate commerce. A long line of Supreme Court cases establishes that Congress may regulate three categories of activity pursuant to the commerce power. These categories were first summarized in Perez v. United States, 2 and most recently reaffirmed in Gonzales v. Raich.3 First, Congress may regulate the “channels of interstate or foreign commerce” such as the regulation of steamship, railroad, highway, or air-petitioner’s own conduct or participation in the activity is, by itself, either too local or too trivial to have a substantial effect on interstate commerce. Rather, the Court has made clear, “where the class of activities is regulated and that class is within the reach of federal power, the courts have no powers ‘to excise, as trivial, individual instances’ of the class.”4 While the health care law has generated intense passions on both sides, I don’t share them. Although it seems well established that many Americans are burdened with costly and yet woefully ineffective health care, if I’d been elected president, I probably would have focused my attention on the financial crisis and the economy and moved more slowly on health care reform.

In conclusion, one thing that is certain about the debate over individual mandates is that the issue is not going away. There are very strong feelings and very strong positions on both sides of the debate, and little long-term evidence that can be brought to bear to close the gap between the sides. It looks not only possible but perhaps likely that the Supreme Court will strike down the health care law as unconstitutional, probably in its wholeness, is a compliment to some skilled and passionate encouragement and the persuasive power of conservative media and what a breathtaking departure seems from decades of Supreme Court jurisprudence

1. Timothy S. Jost, “Can Congress Regulate ‘Inactivity’ (and Make Americans Buy Health Insurance)?” New England Journal of Medicine 364, no. 9 (March 3, 2011): 870.18. Jost, ”State Lawsuits,” 1228. See also, Jack M. Balkin,

2. See Perez v. United States, 402 U.S. 146, 150 (1971).

3. Gonzales v. Raich, 545 U.S. 1, 16–17 (2005).

4. Perez, 402 U.S. at 154.

5. Jost, ”State Lawsuits,” 1228. See also, Jack M. Balkin, “The Constitutionality of the Individual Mandate for Health Insurance,” New England Journal of Medicine 362, no. 6 (February 11, 2010): 483 and Gostin, “Individual Mandate,”