Probably the strangest thing about the discourse I’ve seen on the right about the Affordable Care Act is that not only have a lot of people convinced themselves that ACA should be deemed unconstitutional, they’ve gone so far as to convince themselves that the idea that ACA is constitutional is some kind of outlandish leftwing innovation. This often involves simply misstating the text of the commerce clause, and universally involves completely ignoring a couple centuries worth of precedents.
Here, though, my colleague Igor Volsky highlights a section of Justice Scalia’s concurrence in Raich v Ashcroft:
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.
So first: That’s Justice Scalia. Second: Purchasing health insurance is clearly economic activity, and the state of the health insurance market in any given state clearly does substantially affect interstate commerce. As is generally the case with words in the English language, the phrase “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” could be construed in a few different ways. But for a very long time now the Supreme Court — including its most conservative members — have construed it as authorizing general economic activity. The live legal disputes concern regulation of non-economic activity that’s alleged to have economic impacts.