Freedom dies a little bit...

"if the commerce clause can be used to cover any activity where costs are shifted from one person in society to another." (from the public comments section.)

Ilya Somin on the Volokh law blog looks a bit closer at today's Michigan ruling that upholds mandating the purchase of health insurance for all.

The problem with this reasoning is that those who choose not to buy health insurance aren’t necessarily therefore going to buy the same services in other ways later. Some will, but some won’t. It depends on whether or not they get sick, how severe (and how treatable their illnesses are), whether if they do get sick, they can get assistance from charity, and many other factors. In addition, some people might be able to maintain their health simply by buying services that aren’t usually covered by insurance anyway, such as numerous low-cost medicines available in drug stores and the like. In such cases, they aren’t really participating in the same market as insurance purchasers.

Of course, many people will buy the same service later, and for some the probability of doing so is quite high. But the individual mandate makes no distinctions on any such basis. It sweeps in nearly everyone. If the mere possibility that you might purchase a similar service somewhere else is enough to count as “activity” and therefore regulable under the Commerce Clause, then almost any regulatory mandate would be permissible. For example, a requirement that each citizen purchase a gym club membership and exercise for one hour per day could be defended on the basis that, otherwise, people will be less healthy, which will make it more likely they will spend more money on medical care, health insurance, and perhaps other forms of exercise.

The opinion also claims that the Commerce Clause covers “economic decisions” as well as “economic activity.” “Economic decisions,” by this reasoning include decisions not to engage in economic activity. That, however, would allow the Commerce Clause to cover virtually any decision of any kind. Pretty much any decision to do anything is necessarily a decision not to use the same time and effort to engage in “economic activity.” If I choose to spend an hour sleeping, I necessarily choose not to spend that time working or buying products of some kind.

Another noteworthy aspect of the Michigan decision is that it ruled that the Thomas More plaintiffs had standing and that the case was ripe. In this respect, it was similar to the earlier Virginia ruling, which also came down against the government on these points. It looks like standing and ripeness issues will be less of a problem for the anti-mandate plaintiffs than I at first thought.

Well, that's one judge's opinion, eh?

Let's see what the American people have to say on the issue come NOvember...

ADDED:
Georgetown law professor Randy Barnett, also writing on Volokh, has this to say about today's decision:

In the course of dismissing the plaintiff’s Commerce Clause challenge, the Judge Steeh has vindicated an important element of all such pending challenges: this claim of power by the government is without any precedent in experience or in law. In Judge Steeh’s words:

“The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.”

Never before in American history has the U.S. Government imposed an economic mandate commanding that persons engage in economic activity. Given that there is no current Supreme Court doctrine recognizing such power in Congress, the appropriate stance of a district court judge is to follow Supreme Court precedent and deny this claim of power until the Supreme Court decides in due course to expand its doctrine.

Instead, Judge Steeh accepted the government’s expansion of Congressional power beyond regulating economic activity to regulating economic “decisions”:

“While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.”

But this was not “plaintiff’s description.” It was how the Supreme Court itself described its own doctrine in each and every Commerce Clause case that allowed Congress to reach wholly intrastate activity because it was necessary and proper to the regulation of interstate commerce.

By inventing a new “economic decisions” doctrine, Judge Steeh has gone beyond the Commerce and Necessary and Proper Clause doctrines established by the Supreme Court.

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There's still time for the politicians to step back up to the plate and get this thing right... Will they listen here, or double down?

I'm hoping a new crew brings a new attitude and humbles some of the players who just can't fathom that what they twisted and compromised to get through -- and tried unsuccessfully to sell to the American public through liberal media mouthpieces represented on Journolist, including Krugman at The NYT; Klein, Ezra at WaPo; and Klein, Joe at Time -- is ... faulty.

Just a thought.