The answer to that question given earlier this year by U. C. Irvine Law School Dean Erwin Chemerinsky was that Congress could make people buy cars but “what people choose to eat well might be regarded as a personal liberty” beyond Congress’s power. See reason.tv, “Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful.”
Chemerinsky’s answer highlights the difference between liberals and conservatives. Liberals favor expanded federal power to direct society toward good things and if government goes too far — directing us what to eat — some judge, searching through the penumbras of the Constitution will surely create a right not to eat broccoli. Conservatives believe freedom lies in limiting government to its enumerated powers. The right not to eat broccoli (and to decide whether to join Weight Watchers) comes not from beneficent judges but from the limitations inherent in the language of the Commerce Clause.
The Sixth Circuit majority relied heavily on its assertion that the health care market is unique, implicitly treating ObamaCare as a one-off constitutional issue. But once the individual mandate becomes part of Congress’s power to regulate commerce it is hard to see how it will not be used elsewhere as the occasion arises.
On Monday, the New York Times reported in a front-page story that the Obama administration and the auto industry are “locked in negotiations over new vehicle mileage and emissions standards that will have a profound effect on the cars Americans drive and the health of the auto industry over the next decade and beyond.” Obama wants new cars and trucks to average 56 miles per gallon with increases in fuel efficiency starting in 2017. The problem is not technical but economic and political.
The automakers say the standard is technically achievable. But they warn that it will cost billions of dollars to develop the vehicles and they express doubt that consumers will accept the smaller, lighter — and in some cases, more expensive — cars that result.
Perhaps the answer is an Individual Car Mandate. Once the constitutionality of the individual mandate has been established the problem of costs and customers will disappear in other areas as well. Like the insurance companies who did not effectively oppose ObamaCare once they were assured of millions of new mandatory customers to cover their costs the car companies will undoubtedly be reassured if there is an individual mandate on people to buy their cars. Most industries will produce whatever the government wants as long as politicians assure them people will have to buy it whether they like it or not.
In 2010, Obama informed Massachusetts voters that “everybody can buy a truck.” Earlier this year he advised those concerned about high gas prices to trade in their vans for new ones with better mileage. If Congress can impose an individual car mandate the decision on buying an ObamaCar may not be an individual one since a mandate may be required for them to work.
It seems doubtful the Founders thought the six-word grant of power in the Commerce Clause would be used in this fashion and it is troubling that two distinguished professors and an editor of a national magazine were unable to answer Will’s question about Weight Watchers. They could not, in other words, articulate where the principle – once established – might stop. Perhaps, like the Sixth Circuit, they were simply unwilling to acknowledge where their position will take us.