"I can't off the top of my head recall a case in which one group of private individuals was required by law to purchase a product sold by another group of private individuals on an ongoing basis."
Well, car insurance comes to mind.
Neither the Congressional power to tax and spend or eminent domain are germane to health insurance requirements are contained in the recently passed House bill. The constitutional provisions that are germane are those of Article I, Section 8 "provide for ... general welfare" and its last paragraph, the Elastic Clause.
Car insurance is mandated at the state level, though not federal. And car insurance is only required if you indeed own and register a car and intend to drive it. If you decide not to drive or indeed don't own a car, no one is going to fine you for not purchasing auto insurance. You can "opt out".
On the other hand, if this bill became law, merely existing would require you to purchase health insurance. That's a different kettle of fish. You can't opt out.
I don't believe that the "Necessary and Proper" clause gives Congress unlimited power to make law. Much the opposite. If the proposed law falls out of Congress' authority under the Constitution, it has no right to pass it and it should be found unconstitutional.
IMO.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I think that's enough to at least have an argument against mandates. I would like to see this go to court (or a few other cases) so that there can be some more clarity gained about what the 10th Amendment means.
"When the snows fall and the white winds blow, the lone wolf dies but the pack survives." Winter is Coming Now this is the Law of the Jungle—as old and as true as the sky; And the wolf that shall keep it may prosper, but the wolf that shall break it must die. As the creeper that girdles the tree-trunk, the Law runneth forward and back; For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack.
