Obamacare vs. The Commerce Clause
In my column for Defining Ideas this week, I argue that if Congress can regulate health care, it can regulate everything under the sun.
As everyone knows, the dispute over the individual mandate under the Patient Protection and Affordable Care Act (also known as ObamaCare) is due before the Supreme Court. The case will be argued this coming March, with a decision to be expected by June 2012—just in time to ignite political passions before the November presidential election.
It is likely that ObamaCare’s individual mandate will be affirmed by the Supreme Court, especially in light of the recent decision by Judge Laurence Silberman, which held that the individual mandate falls within the power of Congress to regulate interstate commerce. As troubling as Silberman’s decision was, the debate over the individual mandate is a diversion. The real objection to the health-care mandate is that it puts Congress deeper in the business of regulating health care when, under our original constitutional design, it only has a marginal role.
In making this broad claim, it is necessary to expose the deep cleavage between the Commerce Clause as it came down from the Constitutional Convention in 1787, and the faux Commerce Clause that emerged out of the New Deal.
Continue reading at Defining Ideas.
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Oct '10
Re: Obamacare vs. The Commerce Clause
The Supreme Court, in misinterpreting the Commerce clause and failing to protect property rights in the Kelo decision, has ignored the Constitution for roughly seventy years. Given that our law schools seem to be pumping out liberal lawyers, with no inclination to change course, isn't it perhaps time to follow Rick Perry's suggestion and institute judicial term limits, or alternatively to subject our judiciary to periodic elections? After all,with judges like Sotomayor openly joking that courts are now legislating, shouldn't these 'legislators' be subject to the same electoral accountability as the actual elected legislators?
Oct '10
Re: Obamacare vs. The Commerce Clause
So all we need are another three Clarence Thomases and we're OK? Who are the judges, professors - perhaps even whole law faculties - who take an appropriate view of the constitution that could form the vanguard of this much-needed intellectual revolution?
Mar '11
Re: Obamacare vs. The Commerce Clause
If the Commerce Clause is being properly interpreted by Judge Silberman, then there is no effective limit to what the Federal Government can impose on the American people.
The Constitution exists to limit what the Federal Government can impose on the American people.
Therefore the Constitution must be unconstitutional.
Oh, and since the Supreme Court exists in part to interpret the unconstitutional Constitution, and the unconstitutional Constitution is what calls them into being in the first place, they've just reasoned their way out of existence. If they agree with Judge Silberman, that is.
Oct '10
Re: Obamacare vs. The Commerce Clause
"With the exception of Justice Clarence Thomas, the current Supreme Court is, after Lopez, dead set against overturning Wickard."
Are Alito and Roberts Squishes? I was under the impression they were reliably conservative, which in turn I interpret as Originalist. (However, all my knowledge of the SCOTUS is from the press or Wikipedia.) If you think that Kennedy and Scalia are likely to support the mandate, and that Alito and Roberts are without the strong conviction absolutely barring them from the same, what hope do conservatives have in the courts? It's not as if there's a ready supply of Clarence Thomas's out there, or the political will to put them into place.
Re: Obamacare vs. The Commerce Clause
I'm not being an alamist when I say freedom itself is at stake in this decision.
This is the start of turning America toward a command economy, the same corporatism (economic fascism) that was first welcomed and later despised in early 20th century Europe, specifically Italy and Germany.
Edited on Nov 21, 2011 at 7:07amOct '10
Re: Obamacare vs. The Commerce Clause
I think trying to figure out if the Constitution restricts the Congress from doing anything is more of an intellectual historical exercise than anything practical. I adore listening to folks like Epstein and Yoo talk about this sort of thing, but I'm left with the feeling that this sort of discussion is just deck chair rearrangement.
We've long since nullified most of the Constitutional controls on Congressional power. We've decided that Article I, Section 8 and the Tenth Amendment (The "No, seriously, we mean it" Amendment) are null and void. We've also decided, contrary to the wishes of the founders as written in the Constitution, that the judicial branch is equal and in some cases superior to the legislative branch when it comes to creating legislation.
We're in a post-constitutional era where we are no longer a republic, but are something closer to a democratic oligarchy. We're just watching factions of the oligarchy argue over details and methods at this point.
I know this makes me sound like a world league crank, but I don't see how one can argue that the Constitution much matters anymore.
Sep '11
Re: Obamacare vs. The Commerce Clause
If the Court upholds ObamaCare and the Republicans keep the House and retake the Senate in 2012, Congress' first order of business ought to be the repeal of this legislation precisely on the ground that it is unconstitutional. And Congress ought to do this no matter who is sitting at the other end of Pennsylvania Ave.
Dec '10
Re: Obamacare vs. The Commerce Clause
The competitive spirit of politicians leads them to take on any attempt to control them.
Leviathanian powers also induce the pursuit of the ultimate act of hubris—assembling and accumulating enough authority to prevail over our Constitution’s purpose of limiting it.
The constitutional conflicts are not about what it keeps them from doing; not what they can make it do for us; but in the temptation to do whatever they want to it.
Aug '10
Re: Obamacare vs. The Commerce Clause
Does the last sentence of the article
have any bearing on the purchase of health plans across state lines?
That is, would requiring that states allow individuals to purchase health plans from other states be a legitimate exercise of the Commerce Clause (the power of Congress to regulate commerce among the several states)?
I'm hoping it would be. At least, requiring purchase across state lines seems to me like a much less convoluted application of the Commerce Clause. But then, I'm not a lawyer.
Edited on Nov 21, 2011 at 12:01pmAug '10
Re: Obamacare vs. The Commerce Clause
Amen. And I'm not so optimistic about lawyers seeing a bright line between action and inaction. After all, it's easy enough to describe inaction as a very special sort of action, the null action, if you will.
Apr '11
Re: Obamacare vs. The Commerce Clause
Midget Faded Rattlesnake: Does the last sentence of the article
have any bearing on the purchase of health plans across state lines?
That is, would requiring that states allow individuals to purchase health plans from other states be a legitimate exercise of the Commerce Clause (the power of Congress to regulate commerce among the several states)?
I'm hoping it would be. At least, requiring purchase across state lines seems to me like a much less convoluted application of the Commerce Clause. But then, Im not a lawyer. ·
It does damage the states as laboratories of democracy, and there is a fair amount of genuine harm threatened by the policy, which would prevent states from applying local minima to their standards. Nonetheless, it is manifestly constitutional, the enabling of interstate purchasing being amongst the core purposes for the existence of Congress, and is an extremely good idea, bringing the free market to most Americans in a way that they have not seen for some time. One of the key battles for the next Congress under Newt or Mitt.
Apr '11
Re: Obamacare vs. The Commerce Clause
Severely Ltd.: "With the exception of Justice Clarence Thomas, the current Supreme Court is, after Lopez, dead set against overturning Wickard."
Are Alito and Roberts Squishes? If you think that Kennedy and Scalia are likely to support the mandate, and that Alito and Roberts are without the strong conviction absolutely barring them from the same, what hope do conservatives have in the courts? It's not as if there's a ready supply of Clarence Thomas's out there, or the political will to put them into place. ·
They're pretty good; Bush really doesn't have any rivals in the last century for conservative judicial picks. Still, the justices don't line up on a 1 dimensional axis from liberal to conservative. In Raich, Scalia was a liberal, Thomas properly conservative, and Rehnquist and O'Connor(!) pretty conservative. We can be certain that Raich would turn out no better under this Court, but I have hopes that it would still be 6-3. Scalia and Kennedy are the big unknowns for Florida et. al. v HHS. Obviously, if Kagan were to recuse herself, we could lose a vote, have it tie 4-4, and still defeat the law.
Dec '10
Re: Obamacare vs. The Commerce Clause
The question:
Richard, Judge Silberman reminds me of Judge Goldstone. Everyone knew he was fantastically wrong but he did his damage anyway and then apologized for it!! Must we allow the destruction of the health care system and the further collapse of the economy because an arrogant trivial man has set a fool's precedent. I will not believe that there isn't enough good sense on the court to put this thing down. Why don't you wake up Richard and stop calling the horse race and start advocating for the side you declare to be right in your introductory sentence to this post. Here is your own solution from your own article. If you can present this argument on Ricochet why can't it be presented before the court and why wouldn't the Justices agree?
Dec '10
Re: Obamacare vs. The Commerce Clause
The solution:
"With the exception of Justice Clarence Thomas, the current Supreme Court is, after Lopez, dead set against overturning Wickard. But the justices don’t have to overturn Wickard to strike down the individual mandate. What they must do is acknowledge what Judge Silberman has denied—Wickard’s indefensible pedigree—and then refuse to budge one inch further. With Wickard’s pedigree discredited, it is far easier to accept the sensible claim that commerce does not apply to transactions that people never entered into.
The action/inaction distinction would be beside the point if the New Deal Court had not gone off the deep end in the first place. Manifestly, if Gibbons were still law, ObamaCare wouldn’t stand a chance before the Court. But if the justices recognize publicly that Wickard is a constitutional aberration, then knocking out the individual mandate should be a piece of cake, for the one point that is absolutely incorrect in Judge Silberman’s opinion is that national problems require national solution."