Unlike Roscoe, these uninsured Americans are not even arguably engaged in commerce. They aren't in the health or insurance businesses. They aren't creating anything of value to sell into a regulated market.
It's not hard to see why a reasonable constitutional lawyer would conclude, as many have, that Congress cannot stretch the commerce power to regulate and fine people who merely exist.
So now-aha!-the U.S. Justice Department finds that the individual mandate rests upon the power of Congress to tax. This was no sudden stroke of legal genius. The House-passed version of ObamaCare - the one supported by Congressman Welch - contained the key Sec. 401: "Tax on Individuals Without Acceptable Health Care". But that tax language wasn't enacted. The Senate bill that replaced the House language relies on regulation of commerce (Sec. 1501).
But the individual mandate does not involve a tax increase. Who said so? President Barack Obama, who "absolutely rejects" that notion when pressed by George Stephanopoulos on ABC 's This Week last September. But that was then.
So the Obama Administration's position now comes down to this: Congress has the power to tax you until you do any specific thing Congress thinks is good for you, or for the nation, or for the planet. If you're one of the 18 million working uninsured, you must buy government-approved insurance or face the IRS Penalty Patrol at your doorstep. Not good.
There is growing concern about obesity, a major health risk factor. Under the Obama theory, Congress could levy a new tax on every excess unit of your Body Mass Index, until you prove to the Federal Obesity Regulation Bureau that you have, through diet, exercise and perhaps surgery, reduced your BMI to 25.
To be subject to the law, you wouldn't have to be in the business of being obese - say, by working in a circus sideshow. You would just have to exist. That's all it would take to trigger a new tax, that the IRS would make you pay until you complied with Washington's dictates. And if you don't pay the IRS, you can end up in jail.
Make no mistake: whether by stretching the commerce power beyond all known bounds, or by levying new taxes on anything and anybody to validate regulations unsupported by any power found in the Constitution, ObamaCare is a mortal threat to our liberty - and to our constitutional republic.
John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).