Today’s Questions for the President

by Peter Kirsanow

Senior presidential adviser Stephanie Cutter, commenting last week about Obamacare on the White House blog, wrote: “Those who claim the ‘individual responsibility’ provision exceeds Congress’ power to regulate interstate commerce because it penalizes ‘inactivity’ are simply wrong. Individuals who choose to go without health insurance are actually making an economic decision that affects us all.”

Are there any lawful activities that arguably affect interstate commerce that the federal government cannot compel (by force of penalty) citizens to engage in? If so, what are such activities and why can’t the federal government force individuals to engage in them? Where, how, and when do you draw the line on federal power to regulate inactivity under the commerce clause? If the federal government’s authority under the commerce clause is as expansive as Ms. Cutter claims, does the Tenth Amendment continue to have any purpose?

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