That is one of three arguments being advanced by the government in the various lawsuits that have been filed. Another defense of the mandate is that it is essentially a tax and that the Constitution gives Congress the sole power to levy taxes. Finally, the government’s Commerce Clause argument rests on the notion that since insurance is economic activity, Congress has the power to regulate it any way it sees fit.
These arguments have been made in district courts in Virginia (two different courts), Michigan, Florida, and Washington, D.C where Obamacare suits have been heard. In the three cases in which the government has prevailed, the legal reasoning upholding the mandate has been original, to say the least.
A judge in Michigan ruling on the mandate declared that it was constitutional because deciding not to purchase health insurance is an “economic decision.” Judge George Caram Steeh wrote that economic decisions include decisions not to engage in economic activity.
In the Washington, DC Obamacare case, Judge Gladys Kessler’s ruling in favor of the mandate was even more bizarre. Congress has the power to regulate “decision-making” because it is “mental activity,” wrote the judge. She argued that “[m]aking a choice is an affirmative action, whether one decides to do something or not do something.” Ilya Somin of George Mason University says that “[t]his approach would allow the Commerce Clause to cover any choice of any kind.”
Somin sums up the danger:
All three arguments have a common defect: if accepted by the courts, they would give Congress the power to enact virtually any mandate of any kind. Such a ruling would be unprecedented and would make a hash of the Constitution’s carefully defined limits on federal power.
In this sense, the battle over Obamacare is a battle for America’s soul. It will answer — perhaps with a finality that lovers of liberty would regret for all time — the question that has faced every generation of Americans since our founding: what are the limits of federal power? If the Supreme Court confirms a federal mandate that forces individual American citizens to purchase health insurance, there will be no discernible limits on government as long as Congress says that it is regulating economic activity. The precedent would be set, the die cast.
The 11th circuit hearing was just a warm-up. The real show will begin when the nine justices of the US Supreme Court don their robes to hear the most consequential case to come before it in many years.