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A closer look at the health care debate

March 25, 2012
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The commerce clause in the Constitution:

The Congress shall have Power . . . to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Pro argument from Department of Health and Human Services:

[The mandate] is within Congress’s power to enact not only because it is a necessary component of a broader scheme of interstate economic regulation . . . but also because, within that scheme, the provision itself regulates economic conduct with a substantial effect on interstate commerce, namely the way in which individuals finance their participation in the health care market. . . . Individuals without insurance actively participate in the health care market, but they pay only a fraction of the costs of the services they consume.

Con argument from 26 states challenging constitutionality of individual mandate:

The Constitution grants Congress the power to regulate commerce, not the power to compel individuals to enter into commerce. That distinction is fundamental. A power to regulate existing commercial intercourse is precisely what the framers sought to confer upon the new federal government. The power to compel individuals to enter commerce, by contrast, smacks of the police power, which the framers reserved to the States.

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