12/21/2010 08:03 am ET Updated May 25, 2011

A Fundamental Rights Ruling Masquerading Under the Commerce Clause

Don't be fooled by all the talk about Congress' Commerce Power in the recent District Court decision holding the Obamacare health care mandate unconstitutional. Although couched in terms of commerce, the ruling actually involves a different area of constitutional law: fundamental rights. To see this, ask yourself whether the opponents of the federal health care mandate would be willing to say publicly that a State health care mandate is constitutional. I assure you they would not. (In fact I hope some federal judge asks that question during oral argument). The only reason an assault has not been mounted on the individual mandate in the Massachusetts' system, for example, is that the mandate is largely unenforced. Opponents of Obamacare undoubtedly regard State mandates as equally unconstitutional.

The commerce challenge against the health care mandate has always been weak. Congress has used its regulatory power over interstate commerce to increase economic activity since the end of the Depression. Ordering someone to buy a product in interstate commerce, in this case health care insurance, is a plain and simple method of using federal power to increase consumption. If this particular method of stimulating consumption is unconstitutional, it is not because of any imagined limit on federal commerce authority, but because there is a fundamental right recognized in the Constitution not to be forced by the government to buy a product. That is why conservative Pittsburgh Post-Gazette columnist Jack Kelly called the recent ruling against Obamacare a "blow for freedom". Kelly wasn't calling for State health care mandates instead.

But mislabeling does not mean a court holding is wrong. There certainly must be a fundamental right in general not to be forced by any level of government to buy products. How would you like it if you received a letter from your State capital ordering you to spend 50% of your income on consumption ("and while you're at it, buy a new car, you cheapskate"). The reasons conservatives are being coy about this constitutional right is, first, that the current mandate is federal so they don't have to talk about the power of the States and, second, conservatives hate to admit that the Constitution protects fundamental rights.

But while there must be a general constitutional right against being forced by the government to buy products, the question is whether that right applies to health care. I think the answer to that question is, no. The reason I have a right to save my money and not buy products is that the consequences of the decision to save fall entirely on me. I am the one who will not have a television.

But in the case of health care, to a certain extent a person will still receive the product -- medical treatment -- whether there is insurance or not. If an uninsured person is in a car crash, the medics will come out. If she goes to the emergency room, she will still get care. In the case of medical treatment, many of the consequences and costs of someone's failure to purchase insurance fall on you and me. Since we have decided as a society not to let people die in the streets, whether or not they have health insurance, there cannot be a fundamental right not to buy insurance.

In other words, the conservative instinct against government mandated purchases is undoubtedly right. It's just misplaced in the case of health care.