The Individual Mandate and the Constitution

Liberal blogger Matthew Yglesias takes to his blog again today to defend the constitutionality of the individual mandate to buy health insurance. His gambit is to quote Justice Scalia stating in no uncertain terms that the Congress has the power to regulate interstate commerce, including non-economic activity when necessary as part of their constitutional mandate. After all, who on the right can argue with Scalia?

It's a clever rhetorical trick, but rather unconvincing.

While it's true that Congress has the power to regulate interstate commerce and that health insurance affects interstate commerce, is that really the problem with the mandate? It seems to me the problem is that the mandate forces people to engage in an activity that affects interstate commerce, just so the Congress can then turnaround and regulate that activity.

Don't take my word for it, here's Wisconsin's own Illusory Tenant, a blogger that, unlike me, knows his way around a law library:

Before the mandated purchase takes place, there is no commerce — and therefore nothing in commerce to regulate. It is only by Congress mandating individuals to make commercial transactions that there becomes something in commerce.

So the question presents as, 'Can Congress force a private party to initiate the transaction that will bring into existence the commerce Congress may regulate.' If the answer is yes, then it's not on account of anything the Commerce Clause says

I urge you to go read the whole thing.

Here's Illy-T on AG Van Hollen and the individual mandate.