The worst part? This really is well in line with the Supreme Court’s ridiculously expansive Commerce Clause jurisprudence. You can’t opt out of interstate marijuana commerce by growing and using your own at home, so why should you be able to opt out of interstate health insurance commerce when you’re bound to use medical facilities somewhere at some point? The key bit:

The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses – through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of costshifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez…

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. 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.

I’m not sure why he resorted to that final lethal formulation about activity vs. decision when it doesn’t really capture his basic point and is bound to be trumpeted tomorrow by critics raising the alarm of federal overreach. What he’s saying here, basically, is that we’re all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they’re required and none of us will be denied essential services if we can’t pay. The supermarket will turn away a starving man if he has no money; not so the ER and people who are sick, so for all intents and purposes, we’ve all already opted in here. That being so, the feds can regulate how those services are paid for. By framing it in terms of decisions instead of activity, though, the judge opens himself up to this devastating line from Peter Suderman: “If it’s an economic decision, the federal government can make it for you. That’s the takeaway from a ruling this afternoon by a federal judge in Michigan.” That’s not quite what the court is saying — it’s more like “because you’ll eventually decide to avail yourself of life-and-death services that can’t be refused you, the federal government can make you help pay for them” — but Suderman’s formulation is the one that will resonate politically. Same for this explanation from one of the plaintiffs’ lawyers:

“The trouble, if you think about it, is if Congress has authority to regulate nonactivity then it has the ability to regulate anything,” Muise said. Congress can “tell you to exercise three times a week, to take certain vitamins, to refrain from eating certain foods because, at some point, costs are going to be incurred to the health care market. I find that very troubling when we have a federal government that’s supposed to be of limited, enumerated powers,” he said.

Yeah, that’s the greater worry, I think — that if we’re all necessarily “active” in health-care commerce at all times, theoretically there’s no limit to what sort of further activity can be mandated in the interest of spreading costs. Can the overweight man or woman be forced to diet because he/she is more likely to need medical services? Presumably that would be dealt with via higher insurance premiums, but we all know only too well already that federal pressure on insurers to keep premiums down will create all sorts of inefficiencies, which is where we get into ye olde rationing problem. Simple question: What’s the limiting principle on this decision? Would the feds be barred from penalizing people for failing to maintain, say, a certain BMI target because of the right of privacy or bodily autonomy, etc? Or would they not be barred at all? Where does this end?

Via Eyeblast, maybe this’ll win you over.