What Congress can't require

Alec MacGillis's article about the details of how health-reform legislation would require Americans to purchase health insurance ignored whether the Constitution allows that requirement at all ["If you build a coverage mandate, will they come?," front page, Oct. 26].

The Supreme Court has expanded Congress's authority to regulate interstate commerce itself to include "activities that substantially affect interstate commerce."

There is, however, a fundamental difference between regulating activities in which individuals choose to engage and requiring such activities. The Congressional Budget Office called Congress's 1994 attempt to require that individuals purchase health insurance an "unprecedented form of federal action." It still is. The Congressional Research Service concluded this year that "it is a novel issue whether Congress may use [the commerce] clause to require an individual to purchase a good or service."

The fact that Massachusetts required health insurance coverage is irrelevant. States may do many things that the federal government may not. Nor is this anything like requiring car insurance, which affects only those who drive and, again, is imposed by the states.

If there is no difference between regulating and requiring, between incentives and mandates, then there was no need for "Cash for Clunkers." Congress could simply have required people to buy certain cars or, for that matter, to invest in certain companies or deposit their paychecks in certain banks. The Constitution does not mean whatever Congress wants it to mean; instead it sets limits on the federal government in order to protect liberty.

Orrin Hatch, Washington

The writer is a Republican U.S. senator from Utah.