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That Pesky Constitution

It keeps getting in the way of the left's agenda.

by
Gary Wickert

Bio

December 16, 2010 - 8:58 am
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For many years this clause was conservatively and strictly interpreted. It served as the sentinel and guardian against the onslaught of Progressivism in the 1920s, allowing the Supreme Court to strike down one big government, socialist measure after another. In the 1930s the clause also held back government expansion and huge programs like the National Recovery Act which would have given the federal government massive control over the economy. Using the limiting nature of the commerce clause, the Supreme Court struck down big-government initiatives with machine-gun like efficiency. Supreme Court Justice Louis Brandeis is said to have told a Roosevelt aide, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

Roosevelt later declared war on the U.S. Supreme Court, complaining about the court’s “horse and buggy” definition of the Commerce Clause and, ironically, accusing it of reading into the clause words which were not there. Browbeaten, the Court ultimately relented and in the 1937 case of National labor Relations Board v. Jones & Laughlin Steel Corporation held that Congress could regulate intrastate labor relations if the “effects” were felt across state lines. In the 1942 decision in Wickard v. Filburn it ruled that even if the actions of an individual were not sufficient to trigger the Commerce Clause, the mere notion that if everybody acted like that individual it would affect interstate commerce was held sufficient to trigger its authority.

From that point forward the Commerce Clause dominoes began to fall. Civil rights legislation was deemed too important to let a little thing like the federal authority or the commerce clause get in the way. If a small, family-owned restaurant bought goods from out of state, its actions could be governed and regulated by Congress. The extent and power of the commerce clause has grown uncontrollably to the point where today, the federal government can control almost every aspect of our lives – much to the chagrin of the Founding Fathers. In less than 80 years, its authority was expanded to allow the federal government control over any business with out-of-state customers, any business using supplies which originate out-of-state, and any business whose actions could have the slightest effect on interstate commerce.

In a strange twist of political and historical irony, history may credit the overreaching thirst for power of the Obama administration with the ultimate re-collapse of Commerce Clause authority and a much-needed return to the original intent of the Founding Fathers with regard to the power and authority of the federal government.

Judge Hudson ruled last week that the ultimate power grab – Congress simply claiming that the Commerce Clause should apply because without commerce clause authority the “kinetic link that animates Congress’s overall regulatory reform of interstate health care and insurance markets” would fail – simply isn’t good enough. He said that the power granted to Congress is not without limitations. “Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds,” Hudson wrote.

The judge noted that every application of Commerce Clause power ever found to be constitutional involved some sort of action, transaction, or deed placed in motion by an individual or legal entity. He rejected the federal government’s argument that because every individual will require health insurance at some point in their lives, the decision not to purchase health care insurance is such an activity. The fallacy of this argument is that if a decision not to do anything can qualify as activity in interstate commerce, there truly are no limits to federal power – which clearly was not the intent of the Founding Fathers. The court concluded that Congress lacked power under the Commerce Clause to pass ObamaCare.

Obama had a Plan B. As a back up argument, the secretary also maintained that congressional taxing power can be upheld even when its regulatory intent or purpose extends beyond its Commerce Clause authority – hence the flip-flip on whether ObamaCare’s penalty is actually a penalty or a tax. By now arguing it is a tax, the federal government could maintain a weak but colorable argument that it had constitutional authority to implement the health care mandate and penalty.

The law does provide that Congress can tax under its taxing power that which it can’t regulate. But Judge Hudson was having none of that either. He noted that if it was allowed to stand as a tax, Section 1501 would be the only tax in U.S. history to be levied directly on individuals for their failure to affirmatively engage in activity mandated by the government but not specifically delineated in the Constitution. The judge held that the lack of a constitutionally viable exercise of an enumerated power under the Commerce Clause was also fatal to the penalty contained within Obamacare, and that the Minimum Essential Coverage Provision exceeded the constitutional boundaries of congressional power.

President Obama’s massive power grab in the form of The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 may be the catalyst needed to return sanity and reasonable limits to a bloated federal government mad with power and intrusive in ways never imagined by our Founding Fathers.  Although the U.S. Supreme Court will have the last say on the issue, Obama’s plot appears to have been foiled – for the moment. It seems that pesky Constitution has gotten in the way.

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Gary Wickert is a board-certified trial lawyer, living in Cedarburg, Wisconsin with his wife and two sons. He has a political column in Reality News and has been an op-ed contributor for Ozaukee County's News Graphic as well as a feature writer for several Wisconsin magazines. He is also the author of several legal treatises on a variety of subjects and currently serves as supervisor in the town of Cedarburg. In 2011, Gary lost a bid for the Wisconsin Assembly in the Republican Primary by 72 votes.
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