Mr. Gershengorn responds that the insurance requirement falls within Supreme Court precedents allowing Congress to regulate "activities that substantially affect interstate commerce." With each hearing, he has sought to perfect his argument that the act of not obtaining insurance is itself a consequential commercial decision. "The appearance of inactivity is just an illusion," he told United States District Judge Henry E. Hudson in October. "The consumption of medical services without paying for them, and then shifting those costs, has a devastating effect on the economy."Except that for the purposes of constitutional interpretation, health care expenditures and revenues differ from other commercial endeavors only by a matter of degree. True: Health-related products and services account for an enormous portion of the economy. But if the Supreme Court accepts the government's argument, how is it going to draw the constitutional line in the sand separating health care from other types of commercial "activity," especially once the Court decides that "inactivity" is in fact itself a form of activity?
We may get a clue by the end of the month.