Is striking down the individual mandate like stopping Congress from banning child labor?

Lawprof Andrew Koppleman endeavors to tug the heartstrings of New Republic readers until they think so:

What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.

The other, and perhaps most important, analogy is that the challengers to the law, ordinary folk who have been persuaded that they are fighting to preserve their liberties, are likely to be badly hurt if they win. They are frightened of federal power, but they really should be frightened of their “friends” who are trying to shake off government regulation. The prevailing claim in Hammer [v. Dagenhart] was made by a father whose sons had been working sixty hours per week in a North Carolina factory. He claimed that the law violated his rights by depriving him of his children’s earnings. Several years later, Reuben Dagenhart, one of those boys, reflected on the constitutional rights that the Supreme Court had given him. “We got some automobile rides” from the wealthy businessmen’s committee that had financed the litigation. “They bought both of us a Coca-Cola. That’s what we got out of it.” At age twenty, having worked twelve hours a day since the age of twelve, now with a wife and child, he said, “Look at me! A hundred and five pounds, a grown man and no education. I may be mistaken, but I think the years I’ve put in the cotton mills have stunted my growth. They kept me from getting my schooling. I had to stop school after the third grade and now I need the education I didn’t get.”

“It would have been a good thing for all the kids in this state if that law they passed had been kept,” Dagenhart continued. If today’s Supreme Court strikes down health care reform, it’s not hard to imagine future Americans expressing similar regrets.

Koppelman seems to be saying that because the Supreme Court had an unduly narrow interpretation of the Commerce Clause in 1918 — rejecting federal labor law applicable to factories — that it's pernicious to have even the kind of minimal limits on the Commerce Clause that seem to exist today. And he wants us to concentrate on human suffering: Children, sent to work by their parents, were exploited; and everyone, visited by disease, will... Hmmm. Will what? Koppelman says they "will die... or be bankrupted by medical expenses."

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can't pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It's the exploitation of the young, ironically. But Koppelman doesn't want you think precisely about what the legislation does, and who's really being required to pay for what. He'd like to roll you up into a big ball of emotion where you visualize poor little children....



... that's the illustration at the link... along with all the poor people who suffer from diseases... and where you ache feelingly.... for the power of Congress.