Sorry for the absence–I was on vacation. To start off another season of The Non Sequitur, here's our favorite pseudo-intellectual, George Will on the constitutionality of health care legislation. I wonder if we have a case of the slippery slope here:
Although Democrats think their health-care legislation faces smooth sailing to implementation, there is a rock dead ahead — a constitutional challenge to the legislation's core. Democrats who assume it is constitutional to make it mandatory for Americans to purchase health insurance should answer some questions:
Would it be constitutional for the government to legislate compulsory calisthenics for all Americans? If not, why not? If it would be, in what sense does the nation still have constitutional, meaning limited, government?
Supporters of the mandate say Congress can impose the legislation under the enumerated power to regulate interstate commerce. Since the New Deal, courts have made this power capacious enough to include regulating intrastate activity that "substantially affects" interstate commerce. Hence Congress could constitutionally ban racial discrimination in "public accommodations" — restaurants, motels, etc. — as an impediment to interstate commercial activity.
Opponents of the mandate say: Unless the commerce clause is infinitely elastic — in which case, Congress can do anything — it does not authorize Congress to forbid the inactivity of not making a commercial transaction, of not purchasing a product (health insurance) from a private provider.
One reason we might call this a slippery slope is that Will's objection hinges on permissiveness: if we allow activity x, then we will eventually have to allow absurd activity y, as they are fundamentally or in principle no different. Permitting the one–the (sometimes subsidized) purchase of health insurance) will logically compel us to permit the other (the mandatory practice of morning jumping jacks). The argument, then, isn't against the current proposal, it's against exercise, which will follow logically from the current proposal.
Well that's just dumb. There are lots of arguments against the current lame proposal in Congress. This is not one of them.