Matt Glassman wrote this:

http://www.mattglassman.com/?p=3069

I commented with this:

I think you may be overthinking this. If the key question is:

“If we uphold this statute, what can Congress not do?”

Well, let’s ask the Constitution! Amendment the First:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

So presumably if Congress passed a law saying “Nobody is allowed to petition the Government for a redress of grievances anymore” no amount of Commerce-Clausing or Necessary-and-Propering would be able to render such a statute Constitutional. Nor would, say, a law mandating federal judges deliberately devise cruel and unusual punishments, nor laws permitting slavery, or laws that say “black people pay a black-people tax,” or laws that prohibit women from voting, or a law that gives the Speaker of the House the power to appoint Ambassadors, or you get the idea.

I guess it seems pretty obvious to me that the Constition is actually a fairly clear document in terms of who can do what and who can’t. I don’t really see where a limiting principle becomes so very very near in this case. If Congress has, for a quarter-century, not been contested in their power to mandate that private hospitals provide their services to any customer regardless of their ability to pay for that service:

http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act

Then I’m not sure why then mandating that those potential-customers – ie, everybody – purchase insurance against such an occurance is somehow unqiuely in need of being constrasted against a “limiting principle.” If Congress passed a law that said “everybody is entitled to a car regardless of ability to pay” then everybody would have a car and thus be subject to the existing mandates on purchasing auto insurance. Instead Congressed passed a law that made everybody a potential customer of the medical-care industry. What’s the big deal here?

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