No, not what two people may do to each other in the privacy of their homes. Rather, what it takes to make a legal and binding contract: two adults, or two competent parties, like the government and a competent citizen.
This has been the essence of commerce in the United States since its founding. The very concept of the contract pre-dates our republic, and is clearly the framework around which all laws impacting commerce are built. Or ought to be.
Along comes ObamaCare, attempting to fix a problem. In its case, two problems: those who lack insurance (not those who lack health care; important distinction), and those with pre-existing conditions that prevent them from getting health insurance.
These are indeed problems, to a certain extent. But the attempted solution was akin to beheading to cure a nose-bleed. That said, the constitutionality of ObamCare does not rest on its wisdom. Good thing; there are so many laws that would fail (No Child Left Behind, anyone?).
No, not wisdom, per se. Constitutionality in this case rests on whether the law violates state or individual sovereignty (that pesky Tenth Amendment), or whether it violates the Commerce Clause by requiring citizens to engage in commerce.
Important distinction: The Commerce Clause applies to, well, commerce: the exchange of money, goods, or services, in exchange for some different mix or timing of those three things. By mutual agreement and consent, usually called a contract.
Yes, the government may, in its infinite wisdom (ok, where’s the sarcasm key?) regulate commerce. But the absence of commerce? This may offend some Chamber of Commerce types, who want to see more contracts, not fewer. But this is hardly the business of government, telling us what we must add to our shopping carts.
Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms — without duress.
What does one call the threat of a fine (or “tax”) for not engaging in commerce? I’d call that duress. The government is clearly violating the Tenth Amendment, as nowhere in the Constitution does it allow the Federal government to require its citizens to enter into a contract.
In simplest terms, the problems allegedly solved by ObamaCare are much less important than the need to preserve our essential liberty. In this case, the liberty to not be put under duress to buy a particular thing: health insurance.
Once the government can force you to buy health insurance, the list of things it can force you to buy, all in the name of fixing “problems,” mind you, is without end.