That Pesky Constitution
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.
We all better hope the Obamacare cases all get to the Supreme Court before President Obama has the chance to replace one of the more conservative Supreme Court justices. That alone might be enough to keep Obamacare legal and Constitutional.
Just because the supreme court says something is legal does not make it so.
We all better hope that all of these Obamacare court cases get to the Supreme Court before President Obama has a chance to replace one of the more conservative justices on the court. That alone could be enough to keep Obamacare “Constitutional.”
Can’t we just skip this annoying debate and go directly to tyranny. Personally, I know that I can’t wait to give 100% of what I earn to a few hundred aristocrats who know far better than I could ever know what is good for me.
Luckily, we have numerous examples of where totalitarian governments have worked with resounding success.
“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.”
And if non-activity also affects interstate commerce (like not buying health insurance) what can’t the government regulate/mandate.
Take the decisions to get married or not, and to have a family. Certainly in the aggregate it affects interstate commerce; having kids impacts the next generation of workers.
The federal government, through the First Amendment can’t dictate what church you can go to, but there is no such ban on it dictating your decision to get married or not or to have kids.
Well, keep in mind the gubmint has already regulated what kind of ceramic/plastic bowl you can deposit your daily turds in. Next step will be to regulate how often you get to make that deposit.
Maybe they’ll even require you to deposit them in a central collection facility so that they can be analyzed for proper, healthy diet. If you’re eating unhealthy foods it imposes a burden on the health care system, after all.
It is a blessing to feed the hungry and Congress looks positivels emaciated. Shall we deposit…?
The argument that “inevitably, every individual would require medical care” actually has a tiny bit of relevance – but not in the way the administration intended.
I would argue that as a society, we have already decided that no one will be denied certain healthcare, regardless of their ability to pay – ie, emergency conditions, children, etc. I feel that given that wide agreement, the cost of “catastrophic” healthcare should be spread across our entire population.
However, that does not mean the federal government should provide for it, regulate it, or even participate in it. The ideal solution to me would be to have society provide credits of some sort to pay for healthcare above a certain level (perhaps $20K or so), with individuals paying directly for their own policies if desired (like homeowners insurance).
That’s why the Constitution exists… far-sighted, our Founders.
One wonders if Michelle is contemplating requiring every child in America to “eat their vegetables” or face a tax. After all, if we do not support those vegetable growers, the entire system of interstate commerce may implode. Besides, vegetables are good for you.
Well, if the EPA gets around to applying a cap and trade tax on cows because of their harmful emissions it would amount to being a tax on meat thereby making veggies appear more desirable.
There is nothing they can do or say that will convince me that they know better than I do what I should eat. It’s none of their damn business.
“Eat more vegetables”–it is so hard to take seriously nutrition advice from a woman who has a backside the size of Ohio. (with apologies to Ohio)
Is it just me or is the “zealous left” behaving like the “religious right” of a generation ago? Mind your own business, stop trying to run everyone’s life, and you don’t know everything about everything. And that goes for “both of yous”. (to borrow a phrase from “My Cousin Vinny”)
Thankfully we have the constitution to put the brakes on these busybodies. And in the House today, they are actually reading something before they vote on it. Splendid!
Its just you. And there is a big difference between trying to persuade you to behave in a certain way and requiring you, by law, to do so.
The mandate isn’t nearly as offensive to me as the requirement that we all purchase minimum coverage defined by Federal bureaucrats rather than policies that best meet our individual needs. The entire goal of Obamacare, as with most of the Dems agenda, is wealth redistribution.
I hope and pray that this will lead to a Constitutionally mandated downsizing of government since most of what the Fed does these days is unconstitutional.
These Leftists have saved our country with their vast over-reach. Folks have awakened, and they have fallen in love with the Constitution again. The 2012 slogan? “It’s the Constitution, stupid!”
Even the SCOTUS seems to have become enamored of it again.
I’ve read the Constitution many times over, and there is nothing in there about making fat kids eat more vegetables.
Every act of Congress, every executive order from the White House, every piece of paper the federal government generates should cite that section of the Constitution upon which each rests.
“Promote the general welfare” sounds fairly broad to me.
I belabor the obvious, but there is a list thousands of items long which constitutional rulings have affirmed which are not SPECIFICALLY mentioned in the Sublime Document. Let’s start with railroads and end with…wait, there is no end.
The 10th amendment specifically states that if it isn’t enumerated in the constitution then the federal government can’t do it. Read it if you don’t believe me.
@Jones.
Right on. And not as a constitutional scholar would understand it either. Call it “naïve constitutionalism” or maybe “constitutional conservatism” (heck I would settle for “constitutional liberalism”). As a preamble to every bill, understandable by any citizen familiar with the text of the constitution.
I sometimes The Volokh Conspiracy where law prof geeks gather in cyberspace to discuss the intricacies of the law. Wow! Talk about pencil neckedness!
Right, I can’t conceive of anyone without a pencil-neck who would spend more than twenty minutes reading any one document. With the internet, make it ten minutes.
Reading versus studying and evaluating may not be sufficient to see all of the consequences and ramifications necessarily following from implementation of the particular article.
We are not looking at this issue with the fastest and easiest way to fix it and that is through State action like nullification!
There is always the act of “nullification” like that bill introduced in Texas HB-297 which states;
“The federal Act is not authorized by the United States Constitution and violates the Constitution’s true meaning and intent as expressed by the founders of this country and the ratifiers of the Constitution.
The federal Act:
(1) is invalid in this state;
(2) is not recognized by this state;
(3) is specifically rejected by this state; and
(4) is null and void and of no effect in this state.”
It also goes further making it a crime for any official, agent, or employee of the United States or an employee of any corporation to enforce any part of the health care act in Texas, and imposes fines up to $5,000 and/or five years in prison for anyone convicted of doing so.
All that needs to happen is the State Legislature have both the House and Senate to enact such a nullification bill and have it signed by the Governor. This way it doesn’t matter if the law is ruled unconstitutional or not by the Supreme Court the law is invalid in all states that nullify it!
How does this differ from John C. Calhoun’s version of nullification?
It doesn’t differ from it at all. That way lies madness. A government that can have its laws “nullified” by state governments would essentially be meaningless…how would Federal laws be enforced? If a state didn’t like one, it would nullify it. Take, for instance, a state that imports something from outside the country. What happens if the state decides it doesn’t like the import tax, excise tax, tariff, whatever? Do they simply decide not to pay it? What about Federal banking regulations? Can states simply decide they don’t need to comply with Federal law?
Hopefully, someone other than me, with more influence, will point out how silly this is…
I teach in a non profit gov’t pre school. They push the Michelle Obama food agenda. The kids just don’t eat the food. I guess putting all that food in the garbasge does keep them from gaining weight in school. Trouble is they go home and eat fried food and sit in front of a video game or TV all night instead of going to a park to play. If the parents want to kill their kids with junk food that’s their choice and the gov’t isn’t going to change that.