Is the EMPLOYER Mandate in Obamacrap Constitutional?

First, watch this:



In a recent post, I noted:

"I am not a Constitutional lawyer, and apparently neither is Obama or members of Congress, but it would appear to me that if the INDIVIDUAL mandate (requiring individuals to buy health insurance or pay a tax) is unconstitutional, then the same should apply to the EMPLOYER mandate."

That seems like a pretty obvious conclusion to me, especially watching that video, but Hank and I came to realize that it's not obvious to everyone. He asked two well-known health policy experts, Avik Roy (who also tipped us to the great video above) and Michael Cannon about their thoughts on the constitutionality of the Employer Mandate.

Michael felt that "the employer mandate is more likely to withstand challenge because the employers are already engaged in a form of economic activity."

Avik offered the same analysis, although with a bit more detail: "There is a big difference between the individual mandate and the employer mandate, unfortunately ... In all previous rulings related to the Commerce Clause, you had to be doing some activity in order to be regulated ... Employers, by contrast, can "opt out of" the employer mandate by closing down their businesses ... Think of all the other mandates employers face (OSHA, EPA, etc etc)."

With all due respect to these very bright guys: I don't think so.

For one thing, if we're going to use their definition of "commerce," then everybody engages in it: we buy gasoline that's trucked over interstate highways from state to state, Hank buys Georgia peaches in Ohio, the list goes on. So merely invoking the seemingly magical phrase "interstate commerce" becomes useless in this instance.

And there's a big difference between OSHA requirements, which require employers to provide safe working conditions but doesn't tell them which brand (or color!) of safety goggles to buy their employees. This is a far cry from requiring not only that an employer provide access to health insurance, but even what kinds of plans can - and can't - be offered.

Unless, of course, HHS grants a waiver.

The point is that the Employer Mandate is simply the other side of the Individual Mandate coin: Congress and the courts have used the Commerce Clause to PROHIBIT certain business actions, I don't see a reference to laws or decisions that REQUIRE businesses to do something they are not already doing.

Prior use of the commerce clause has not (as far as I know) required the employer to purchase items or services that would adversely affect their bottom line. In the case of the discrimination suit, NOT serving blacks DID have an adverse effect on the bottom line and ADDING blacks to the mix (so to speak) actually IMPROVED their bottom line.

Further, there are no known instances where the government used the commerce clause to require an employer to purchase a specific good or service that was substantially different from what they already were buying. And failing that, there were no tax penalties associated for non-compliance.

If a restaurant chooses to use beef graded as Choice, there are no requirements that they must only offer Prime or else be taxed for non-compliance.

Any abuse of the commerce clause requiring an employer to purchase something that has a negative impact on profits has not been evident under cases brought before the Supreme Court according to my research. It seems pretty obvious, then, that the Employer Mandate is no more valid than the Individual version.