Can Congress make us buy something? Most Americans don’t think so

Do you think the requirement in the Patient Protection and Affordable Care Act that every American must buy health insurance or pay a fine violates the Constitution? If so, you’re not alone. A recent USA Today/Gallup poll found that 72% of Americans think the requirement is unconstitutional.

In a just a few weeks (on March 26 to be exact), the Supreme Court will hear oral arguments on this issue in HHS v. Florida (No. 11-398). It’s clear the Justices have their work cut out for them. This could be one of the Court’s most significant rulings on the Constitution’s Commerce Clause in decades.

Government says constitutional. On the one hand, the government argues that Congress has broad power under the Commerce Clause to enact economic regulation. Many of the Supreme Court’s cases support this argument. One in particular illustrates the breadth of that power. In Wickard v. Filburn, the Court found the federal government could regulate the production of wheat on a private farm. Somehow poor Mr. Filburn affected interstate commerce by exceeding the government’s wheat production limits even though he was growing the wheat for his own consumption and didn’t sell it.

That decision and its effect on subsequent Commerce Clause cases dominated for decades until the Court put some limits on the government’s power in United States v. Lopez. In that case, the Court found the government did not have the power under the Commerce Clause to regulate the carrying of handguns in school zones.

States say not. On the other hand, the states (some of the respondents in the Florida case) agree with the 72% of Americans in the USA Today/Gallup poll that think the requirement to buy insurance is unconstitutional. The states argue that the power to regulate commerce does not include the power to make individuals enter into commerce.

The states acknowledge that the government can regulate existing commerce. But they find no support in case law or the Constitution for the proposition that the government can make individuals buy things. While the Constitution explicitly grants Congress the power to establish, constitute, raise, coin, or otherwise bring things into existence, it does not give Congress the power to establish interstate commerce, according to the states.

Decision in June. While polls are interesting and it’s fun to discuss and debate the intricacies of our beloved Constitution, we have to wait until at least June for the Supreme Court’s decision. The outcome, whichever way it goes, is sure to impact not only future jurisprudence, but also our wallets and our lives.