Note in today’s
Wall Street Journal
"Make no mistake, Roberts gave the conservatives a very big gift—a ticking time bomb that could explode in cases down the line," said Nan Aron, the president of the Alliance for Justice, a liberal-leaning civil-rights organization in Washington. "The Commerce Clause undergirds the entire fabric of government and a lot of our laws."
COMMERCE CLAUSE
POWER ABUSE
AND THE
OBAMA-CARE CASE
A Close Call
Analysis
By
Jay B Gaskill
Attorney at Law
THURSDAY, JUNE
29, 2012
The
Administration’s Health Care Reform legislation is alive. The Affordable Health
Care act that became unaffordable is still the law of the land. The individual
mandate has survived as a tax,
thus preserving the essence of the law, and the Supreme Court, itself,
from taking the rap for what would have been the most massive legislative
repeal in history. The real surprise of
the day is that the swing vote was not Justice Kennedy, who still would not
save the mandate in any form, but the conservative Chief Justice Roberts
who voted with the court’s four liberals.
Obama-Care
is still an expensive, bureaucratic mess, ripe for repeal or, at the very
least, some major surgery. But the
patient is still alive…for now.
The
Might-Have-Been Scenario…
Stop
to consider what might have happened under a more prudent, conscientious and
traditional administration. At the outset of the Obama-Care proposal, we might
have actually had congressional hearings, a measure-by-measure debate
and a careful consideration of individual reform measures. Instead we were treated to the sorry partisan
spectacle of a frantic effort to push through a package so comprehensive and
poorly drafted that, even last month we were discovering problems that still
need correction. The measure’s flaws prompted the administration to grant 1,200
waivers. We started with a health care
system that served 80% of us quite well; and we could have begun a
careful and incremental process of extending care to the underserved in ways
that would not degrade or damage the care enjoyed by the vast majority of
Americans. We could have (but did not),
for example, lighten the load on our hospital emergency rooms (already mandated
to take all comers without regard to patients’ means) by creating sliding-scale
clinics financed by a combination of taxes and contributions.
The
administration adopted a bulldozer approach. The well-meaning social engineers
(the “we-will-make-the-world-a-better-place” set) had achieved fleeting two
year hegemony over both legislative chambers and the executive branch. With no
time for reflection, no willingness to give due consideration to the
constitution, no patience to consider the public fisc or the prudential
requirements of wise policy, they handed their fellow Americans a measure that
neither the president nor the members who voted on it were actually able to
read, let alone study.
We
could (but did not) accomplish a number of rational, incremental reforms.
Why the Supreme Court
Case was about Abuse of Power…
Background…
The
great constitutional scheme on which our republic is based consists of
enumerated powers of government balanced against enumerated rights in a
specifically biased way: The enumeration
of rights was not intended to be exclusive – there are non-enumerated rights as
well (such as privacy); but the short list of enumerated powers was intended
to be exclusive – there were to be no powers given the federal government that
were not enumerated in the constitution.
One
enumerated power was granted by the so called “commerce clause” - congress
shall have the power – “to regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.”[1]
Put
plainly, the commerce clause was originally designed to clear the path for free
and unencumbered trade within the USA, overriding contrary state levies,
tariffs and restrictions, because, after all, we were members of one
union. By the early 1800’s, the commerce
clause was used to prohibit state monopolies over travel on interstate
navigable waters.[2]
The Attempted
Power Grab
In
the Obama Care package, the administration chose to rely on a single enumerated
power, the federal authority to regulate commerce in order to force all
Americans to purchase insurance. There is a century of constitutional
litigation here, well beyond the scope of this piece to summarize. But suffice
it to say that this single grant of power has supplied the foundation of a huge
expansion of federal sovereignty over states and individuals.
Note
the restraint that previous administrations have shown. For example, under
Jimmie Carter, the 55 mile an hour speed limit was not imposed using the
raw Commerce clause power; it was imposed as a condition attached to the
receipt of federal highway moneys. In
another example, national educational policy is not directly imposed on the
states and their various educational institutions, but is attached as a
condition to receiving federal aid. The arguments that were advanced by the
current administration in favor of the insurance mandate represented a truly
radical departure from constitutional tradition.
At
its most extreme, the proponents of the commerce clause power maintain that
even passive behavior affects
commerce (much as the flutter of a prehistoric butterfly might affect the
timing of Lincoln’s birth.) This view converts the grant of a power originally
designed to free the flow of commerce among the states into a truly
comprehensive authority over every aspect of our behavior.[3] The continued expansion of power under the
commerce clause would lead to truly staggering excesses because our every action can be viewed as potential consumer behavior.
If the administration had actually won this part of the argument, the
enumeration of powers structure of our constitutional system would be a dead
letter.
The
tension over the commerce power was evident during oral arguments.
“Tuesday's two hours of Supreme Court oral
arguments on Obama-Care's individual mandate were rough-going for the
government and its assertions of unlimited federal power. Several Justices are
clearly taking seriously the Constitution's structural checks and balances that
are intended to protect individual liberty.
“‘Can you
create commerce in order to regulate it?’ inquired Justice Kennedy, in the
first question from the bench. ‘To ask another way, does the Administration
think it has plenary police powers to coerce individuals into economic
transactions they would otherwise avoid?’
And the justice added – “‘The government is
saying that the federal government has a duty to tell the individual citizen
that it must act,’ he said, ‘and that is different from what we have in
previous cases, and that changes the relationship of the federal government to
the individual in the very fundamental way."’
Wall Street Journal 3-27-2012.
As
it turned out, Justice Kennedy was still the swing vote on the lynchpin
Commerce Clause issue, but
Justice Roberts finessed the whole controversy by upholding the mandate under a
separate federal power, the power to tax.
But the precedent holds.
Americans cannot be compelled by the federal government to make a
purchase in order to further or restrain commerce among the states. The
commerce clause does not reach passive behavior, nor can it be used to compel
active consumer behavior.
The Bullet We
Dodged….
From
time to time, history unites the passionate and deeply motivated (we-pray-the-world-will-be-a-better place),
and the well-meaning, determined social engineers, (we-will-make-the-world-a-better-place). These are combustible
moments.
The
last major push for social reform in the USA that represented the alliance of
prayerful, well-meaning liberals and a major attempt at social engineering took
place in 1920. After bitter public argument, the country banned beer, wine and
booze. In that fateful year, the income
tax was generating almost 10 times the tax money received from that older cash
cow, liquor taxes. But income-tax revenues paved the way for Congress to enact
alcohol prohibition. Two constitutional amendments (the 16th and the
18th) were needed to bring this all to pass. [The income tax was enabled
via the 16th Amendment, having been ratified 1916 as a prelude to
prohibition.]
And that is the takeaway point. Imposition of prohibition was a violation of
the existing constitutional structure.
Therefore it had to be accomplished via a constitutional amendment (the
18th amendment, thankfully repealed under Teddy Roosevelt by the 21st
Amendment). If the current administration’s constitutional theory supporting
the Obama-Care mandate that all Americans be compelled to purchase insurance
had been upheld, we would no longer need a constitutional amendment to enact prohibition
or any similar regulation of personal behavior - should the country ever again
find itself in the grip of reformist zeal[4].
If ever adopted, the administration’s constitutional theory will leave us with
no further constitutional barrier, check or balance against the “we-will-make-the-world-a-better-place”
impulses of the social engineers, except a few specifically enumerated rights
like free speech.
I still am of
the opinion that Obama-Care was an act of executive and legislative malpractice. It was and is
an expensive mess. Today’s decision has
not averted a fiscal and health care administration disaster of epic
proportions. But it still leaves open that task to the congress and
president.
There
is still time
One Vote…
To paraphrase Ben Franklin, “It’s a constitution if we can
keep it.” We did…just barely, because justices Ruth Bader Ginsburg, Stephen G. Breyer,
Sonia Sotomayor and Elena Kagan were outnumbered…by
just one, carefully qualified vote.
It
is sobering indeed to contemplate that we came so close to surrendering a major
bulwark against untrammeled federal power. As Thomas Jefferson warned us, “The
price of freedom is eternal vigilance.”
And
to console Mr. Obama, Thomas Jefferson left the reminder that “No man will ever bring out of the
Presidency the reputation which carries him into it.”
JBG
Copyright
© 2012 by Jay B Gaskill, Attorney at Law
Forwards,
links and quotations with attribution are welcome and encouraged. For everything else, please contact the
author via e-mail at law@jaygaskill.com.
[1] James Madison (1731-1836) is widely recognized as the
principal author of the US constitution.
In 1829, Madison he wrote about the commerce clause: “Yet it is very
certain that it grew out of the abuse of the power by the importing States in
taxing the non-importing, and was intended as a negative and preventive
provision against injustice among the States themselves, rather than as a power
to be used for the positive purposes of the General Government, in which alone,
however, the remedial power could be lodged.” - Letter to Cabell, February 13,
1829.
[2] …In Gibbons vs. Ogden 22 US 1 (1824) - “...when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress.” 22 US 200.
[3] Credit for
promoting the constitutional case against the mandate when few took it
seriously goes to Virginia Attorney General Ken Cuccinelli, Duke University law
professor Walter Dellinger, and
Georgetown University law professor Randy
Barnett.
[4] What could be next on the government’s prohibition list? …Large containers of soda pop? …French fries?