Orin Kerr: Why do you hate America?

(said tongue firmly in cheek.)
Kerr entertains an interesting comment thread over at Volokh, playing off Randy Barnett's earlier posts challenging the presumed constitutionality of mandatory health care insurance.

Kerr's post keys in on Barnett's argument that "requiring health care insurance is not regulating commercial activity because it attempts to regulate inactivity":

Unlike Randy, I am no expert in the commerce clause. At the same time, the counter-argument is worth flagging, and I believe it runs like this. Everyone pays for health care goods and services somehow, whether often or only once-in-a-while. Some pay for services individually on their own. Others pay through a pre-purchased insurance plan. Both ways are economic activities — purchasing health care services. From this perspective, if the government chooses to mandate one option, it is not regulating “inactivity.” Rather, it is regulating the economic activity of buying health care services by replacing one means of buying those services with another way of buying those services.

The 7th comment to the thread brings this:

7.Off Kilter says:
As a physician, I can assure Professor Kerr that this claim is incorrect: ” Everyone pays for health care goods and services somehow, whether often or only once-in-a-while.”

Believe it or not, some people can still go through life and ultimately die without seeing a doctor. If we restrict our scrutiny to adults, it is very easy for healthy young active adults to never see a doctor, and suddenly die in an auto accident (DOA, so no futile care even in the end), or drop dead of an unexpected cardiac problem (classically hypertrophic cardiomyopathy). Further, these hypotheticals demonstrate fairly obviously that being forced to pay for health insurance wouldn’t have helped. So Kerr’s argument doesn’t seem sufficient.

December 9, 2009, 7:05 pm

And Kerr responds in comments 11 and 12:

11.Orin Kerr says:
Off kilter,

Going to a doctor is only a very small part of paying for health care, of course. Something as mundane as buying toothpaste counts as a purchase of goods and services for health care, too: It is a purchase of goods or services for an item used to take care of your physical health. And even if a small percentage of the population lives off the grid, never gets sick, never buys soap, and never has any medical care at all, presumably the existence of these outliers doesn’t address the rationality of the legislation.


December 9, 2009, 7:25 pm
12. Orin Kerr says:
Also, I should add, in case it’s not clear to commenters, that by presenting this argument I am suggesting what the cases seem to say, not what I personally think the law should be or what I personally want Congress to do.