The Commerce Clause and ObamaCare's Undoing
I am glad to see that after hours of debate on Ricochet podcasts and blogging debates, Richard is starting to come around to the view that the constitutional weak spot of Obamacare is the Commerce Clause. And now the Virginia federal district court agrees. The Commerce Clause, as originally understood, would not have covered individual health care decisions. But it has been read to allow the government to prohibit the individual from making, buying, or selling products, of even the smallest amount, because they are part of an interstate market in the good. Here, Judge Hudson in a very abbreviated portion of his opinion (only 2 pages) interprets Supreme Court precedent not to reach cases where someone chooses to do nothing. However, it is hard to say, as the judge implies, that the Court has found the Commerce Clause does not reach this far. The Court has never really taken up such a case, because Congress has never tried to use its Commerce Clause powers to force people to buy something. Here, I agree with Richard, that it will be up to the Supreme Court (and probably Justice Anthony Kennedy's 5th vote), whether the Commerce Clause will allow Obamacare ultimately to survive -- not the most inspiring safeguard for constitutional government.
The decision also shows how far federal power has gone beyond its original constitutional boundaries. The Constitution, as originally written, was not intended to give the federal government power over what farmers decide to grow for their own consumption, or whether people could grow marijuana to use or give away, or whether to punish kids for carrying guns in school zones, or how to criminalize violence against women. It is undeniable that many of these issues demand government regulation of some kind; the question for constitutional law is which level of government has the authority to do it. The Supreme Court, however, has interpreted the Constitution to allow the federal government to regulate the first two (wheat and marijuana), but not the last two (guns, gender-motivated crime). This makes little sense; but to the extent there is a distinction, it is the one accepted by the federal judge: interstate commerce does not extend to non-economic activity, and it does not extend to passivity (i.e., the refusal to engage in commerce). In other words, the district judge found that the federal government cannot compel private individuals to engage in an activity it likes -- in this case, buying health insurance. Under our original constitutional scheme, this should have been an easy question, but because of the Supreme Court's steady dilution of the Constitution's limitations on the federal government, it is now a close one.
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May '10
Re: The Commerce Clause and ObamaCare's Undoing
Predictably, The Washington Post is not pleased:
'Well, Judge Henry E. Hudson, a Bush appointee, has just "amended" the health-care law by striking down the provision requiring individuals to purchase health insurance. That sure sounds like "legislating from the bench" to me. Aren't the elected branches of government owed a lot of deference by the courts in enacting social policy?'
That's E.J. Dionne, one of the left's leading lights. The Commerce Clause? Most of Obamacare's proponents haven't even read the Constitution.
Oct '10
Re: The Commerce Clause and ObamaCare's Undoing
At least there are some recognized limitations on positive law at the federal level. Hurrah!
Oct '10
Re: The Commerce Clause and ObamaCare's Undoing
Jason Hart: Predictably, The Washington Post is not pleased:
'Well, Judge Henry E. Hudson, a Bush appointee, has just "amended" the health-care law by striking down the provision requiring individuals to purchase health insurance. That sure sounds like "legislating from the bench" to me. Aren't the elected branches of government owed a lot of deference by the courts in enacting social policy?'
That's E.J. Dionne, one of the left's leading lights. The Commerce Clause? Most of Obamacare's proponents haven't even read the Constitution. · Dec 13 at 3:20pm
Sour grapes! See what it feels like when the shoe is on the other foot?
Jun '10
Re: The Commerce Clause and ObamaCare's Undoing
The financing of Obamacare could have been as simple as a "health care access tax" of, say, 12% of income with a refundable tax credit for premiums spent for private insurance for policy coverage meeting specific guidelines. By avoiding reliance on the taxing power in the legislative language and the legislative history (but not the DOJ briefs), the proponents were too cute by half. I don't know if the courts can bend this one back from a commerce clause issue to a tax issue at this stage.
Edited on December 14, 2010 at 12:52amJul '10
Re: The Commerce Clause and ObamaCare's Undoing
I simply don't understand why, when Wickard is so obviously a lousy political decision, subsequent courts haven't had the fortitude to strike it down.
Oct '10
Re: The Commerce Clause and ObamaCare's Undoing
So me not doing anything is interstate commerce? The left has such intellectual bankruptcy that they must get cramps due to all of their contortions of legal gymnastics.
Why has the Kelo eminent domain case fallen off the radar of conservative punditocracy? I think this is the worst decision in the last 10 years.
Oct '10
Re: The Commerce Clause and ObamaCare's Undoing
Good Berean
Sour grapes! See what it feels like when the shoe is on the other foot?
The shoe isn't on the other foot though and we should avoid saying that is is. There are very real differences between this decision and the judicial activism that comes from the left.
Judicial activism means reading things into the consitution or law that aren't there. Vastly expanding what is "implied" in the constitution. For instance, Roe vs Wade resulted in a Supreme Court decision finding that abortion is fundamental right protected by the Constitution based on "nor shall any State deprive any person of life, liberty, or property, without due process of law" from the 14th Amendment, and the right to privacy that is inferred from the 3rd, 4th, 5th, 9th and 14th Amendments. Saying that abortion is a fundamental constitutional right based upon those grounds is shaky law - that decision should be left to the duly elected representatives of the people. But it wasn't - judges created a new law of the land by discovering something in the constitution noone else had found for a century and a half. THAT is judicial activism.
Edited on December 14, 2010 at 2:05amOct '10
Re: The Commerce Clause and ObamaCare's Undoing
This decision is the reverse of judicial activism: the court is saying that Congress has done something (force every United States Citizen to purchase a product/service) that the Constitution does not allow Congress to do. In this case it is Congress that has read something that doesn’t exist into that document. Notably, Congress has read into the Commerce Clause that the power to regulate commerce between the states includes inherently the power to force every person in every state to participate in one particular kind of Commerce.
The court here has done exactly what it was intended to by the framers: provide a check on the power of Congress.
May '10
Re: The Commerce Clause and ObamaCare's Undoing
Your definition of activism seems to be correct, but my question is: How do we know what is or isn't within or implied by the Constitution? Obviously, it is not necessary for the Constitution to explicitly recognize each and every derivative right of the rights to life, liberty, and property. However, by what standard do we judge a deduction from constitutional statements as erroneous? I can see how the legitimacy of abortion rights follow deductively from the Constitution.
Oct '10
Re: The Commerce Clause and ObamaCare's Undoing
A very good question.
Considering that even the rights explicitly spelled out by the Constitution have limits, the deduction of the right to an abortion from those other rights is pushing it too far. Especially when you read right to abortion into the right to privacy, but not read in any rights for the unborn from the right to life. But I need another way to discuss judicial activism vs prudent decisions that doesn't hijack this commerce clause train and de-rail it into the dismal swamps of abortion debate.
A tentative answer as to when we judge deductions from the Constitution to be erroneous might be when they become third derivatives. In this particular example, the Roe decision extrapolated a right to abortion covered by the right to privacy, which was itself extrapolated from several amendments in Griswold v Connecticut (if I understand the legalese I'm trying to look up correctly) So the Supreme Court made a decision by extending the scope of a decision made by the Supreme Court which involved extending the scope of the Constitution. Seems somewhere in there the legislative branch rather than the judicial should have been making these decisions.
Edited on December 14, 2010 at 5:13pmMay '10
Re: The Commerce Clause and ObamaCare's Undoing
Good point, McKay. I think that's what happens when you combine the Constitution and with traditions of English common law.
Which brings us back to Kenneth's point. I understand that our legal system's respect for precedents is a strength, overall. But surely it's possible and wise to overturn some terrible precedents.
Decisions like Wickard are why we have the 2nd Amendment.