Obamacare’s supporters argue that the individual mandate is justified because the health care market is unique—it’s something that everyone uses, and a great deal of cost-shifting now occurs in health care.

The argument is fatuous for two reasons. First, the cost-shifting is, for the most part, created by Congress itself—through, for example, mandates on hospitals and the payment schedule for programs like Medicaid. If the Constitution grants Congress power to cure any problems Congress created, then obviously congressional authority has no limit. To pass any law they want to, Congress merely would have to mess up something and then claim the right to fix it.

Supporters of Obamacare also illustrate the uniqueness argument by comparing health coverage to baseball tickets—everyone needs health care, but lots of people don’t follow baseball. So, the argument goes, Congress can constitutionally force you to buy health insurance but cannot force you to buy baseball tickets.

Aside from the fact that this argument is a big non sequitur (the fact that people need a service is generally irrelevant to what the Constitution means), any future Congress could simply redefine the market from baseball tickets to entertainment generally. Because virtually everyone spends some money on entertainment, then that market could became the subject of detailed federal regulation and mandates—including mandates that you spend inflated prices to buy baseball tickets that you may not want or need—just as Congress is now trying to force you to buy insurance that you may not want or need.

Rob Natelson

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