The Right Opinion

Clause Escape: Are You Committing Interstate Commerce by Doing Nothing?

By Jacob Sullum · Dec. 15, 2010

During Supreme Court Justice Elena Kagan’s confirmation hearings last summer, Sen. Tom Coburn asked her whether a law requiring Americans to eat their fruits and vegetables could be justified as an exercise of the federal government’s constitutional authority to “regulate commerce … among the several states.” Kagan’s stubborn resistance to answering Coburn’s question suggested it was not as wacky as it may have seemed.

In fact, the Oklahoma Republican was merely applying President Obama’s logic in defending the Patient Protection and Affordable Care Act’s requirement that Americans purchase government-approved health insurance. According to Obama, the federal government can make you do something if your failure to do it, combined with similar inaction by others, has a “substantial effect” on interstate commerce. By rejecting that premise on Monday, U.S. District Judge Henry E. Hudson took a stand for the principle that Congress may exercise only those powers that are specifically enumerated in the Constitution.

It’s about time someone did. Over the years, the Supreme Court, acceding to the legislative branch’s power grabs, has transformed a provision aimed at eliminating internal trade barriers into an all-purpose excuse for nearly anything Congress decides to do.

In 1942, for instance, the court ruled that the Commerce Clause authorized punishing a farmer for violating federal crop quotas by growing wheat for his own consumption. Although the grain never left his farm, let alone crossed state lines, the court reasoned that such self-sufficiency, writ large, had a “substantial economic effect” on interstate commerce in wheat. In 2005, the court used similar logic to uphold federal prosecution of patients who grow marijuana for their own medical use.

Thus was the power to regulate interstate commerce deemed to cover activities that were neither interstate nor commercial. But as broad as those rulings were, Hudson wrote in response to a lawsuit by the state of Virginia, both involved people who chose to do something (grow wheat or pot) that “placed the subject within the stream of commerce.”

The health insurance requirement, by contrast, applies to anyone living in the United States. For Hudson, this lack of choice was decisive. “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he wrote. “At its core, the dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate.”

Hudson rejected the Obama administration’s argument that the inactivity of people who don’t buy medical coverage is illusory because they are de facto choosing to pay for their health care in some other way. “This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence,” he wrote. “The unchecked expansion of congressional power to the limits suggested by the (insurance mandate) would invite unbridled exercise of federal police powers.”

In Obama’s view, the failure to buy medical coverage can be treated as a federal offense because that failure, aggregated across millions of people, has a substantial effect on the interstate market in health care. But the same thing can be said of the failure to exercise, the failure to get enough sleep, the failure to brush your teeth, the failure to wear a coat in cold weather and the failure to eat a proper diet.

Which brings us back to Coburn’s question about a federal fruit-and-veggie mandate. Although he presented himself as a strict constructionist worried about Kagan’s “expansive view of the Commerce Clause,” Coburn brags about writing the Partial-Birth Abortion Ban Act. Guess which provision of the Constitution supposedly justifies that egregious overextension of federal power. Like the medical marijuana case, this contradiction shows that a properly limited federal government is not necessarily something that conservatives welcome or that progressives should fear.

COPYRIGHT 2010 CREATORS.COM

15 Comments

Gordon DeSpain said:

"In Obama's view, the failure to buy medical coverage can be treated as a federal offense because that failure, aggregated across millions of people, has a substantial effect on the interstate market in health care."Yet, almost every state, if not all, have an Insurance Law that precludes buying Insurance across State lines, 'deeming' Interstate Commerce in Insurance coverage a statutory crime: a crime under State Law, contradicted by a Federal Law mandating the purchase of Insurance in Interstate Commerce."Wheels within Wheels, circles without ending...Other than that, I concur with everything you say.

Wednesday, December 15, 2010 at 3:24 AM

Dom said:

"By rejecting that premise on Monday, U.S. District Judge Henry E. Hudson took a stand for the principle that Congress may exercise only those powers that are specifically enumerated in the Constitution."That means that the law, and the other federal judge that "tossed" the previous suit against "obamacare's" monstrous usurpation of power, are REQUIRING that the government EXCEED THEIR CONSTITUTIONAL AUTHORITY. Surely that is illegal. Oh, that's right. This is the RULE OF MEN, NOT LAW. Welcome to hell, boys.

Wednesday, December 15, 2010 at 7:33 AM

bob Apjok said:

As a side note, i do believe abortion falls into the federal governments authority because it is murder. makes no difference if the child has been born yet or not. The 5th amendment says "...nor shall any person...be deprived of life, liberty, or property, without due process of law." if you beleive life starts at conception, then that person is losing his life without due process. of course, if you dont believe that child is alive, the your point would be valid about no authority to ban it.

Wednesday, December 15, 2010 at 9:34 AM

pmains said:

The 5th Amendment doesn't factor into it, Bob. Historically, criminal law (including murder) has been seen as a state rather than federal power. If Tennessee or Oregon decided to legalize murder tomorrow, the Feds would (theoretically) be helpless to stop them. The part of the 5th Amendment that you refer to circumscribes the government's authority to execute, imprison or fine.

Wednesday, December 15, 2010 at 10:20 AM

Pamela Heckel said:

When we finish with Obamacare, can we start with seat belts, air bags, bicycle helmets and motorcycle helmets?

Wednesday, December 15, 2010 at 12:34 PM

Cowboy in San Antonio said:

Three excellent points made by Gordon, Bob, and Dom.

Wednesday, December 15, 2010 at 12:35 PM

p3orion in Midland, Georgia said:

Sometimes I wonder if the best way to defeat liberalism wouldn't be just to force its hand by taking their arguments to logical extremes. Let the Democrats force us all to buy insurance, but then have the Republicans double down on that by forcing us all to buy guns and learn to use them. After all, crime has probably nearly the same economic footprint as health issues, and numerous studies have shown that legal gun ownership lowers crime. Let the liberals fight to establish court rulings that will put unconstitutional overreaching in its place.By the same token, stop trying to prevent abortions after such-and-such a trimester; instead make it legal for fetuses up to about 21 years of age, and make the libs say why it's wrong. I know a lot of people who are of voting age, yet still not "viable."

Wednesday, December 15, 2010 at 12:48 PM

bob apjok said:

i have heard some people agree with you on that, but, to me, it does seem to cover murder and the government's obligation to protect life in a plain reading of the words. I dont think any state would have the right to legalize murder because in my opinion it violates the constitution's protection of an individual's rights by depriving him of life. of course, you also have the the Dec of Ind stating that all are endowed by their Creator with..life, liberty... and the preamble of the constitution which says "...and secure the blessings of liberty to ourselves and our posterity..." but i think the 5th amendment covers it as well.

Wednesday, December 15, 2010 at 1:04 PM

JAC in Texas said:

Again, using Obozo's logic, it is a Federal crime if I decide to leave my car at home and ride a bicycle to work, thereby reducing my gasoline consumption and affecting interstate commerce relative to gasoline sales. Carpoolers are equally guilty of a Federal crime by the same logic. This is all such b/s!

Wednesday, December 15, 2010 at 1:08 PM

Bob Apjok said:

I heard it said one time that if liberals read the 2nd ammendment the same way they read all the others, it would be mandatory to own gun.

Wednesday, December 15, 2010 at 1:37 PM

Anthony Valenti said:

Speaking as an attorney, and looking at this separated from the politics and the rhetoric, this was a good decision based upon the law. The commerce clause is not a boundless source of power for the federal government to act. If it were, the the tenth amendment would be rendered ineffective (which would be a reverse of the way it should be if the text of the constitution and an amendment are in direct conflict) and the text making the federal government one of enumerated powers would be contradicted. Regarding the comment about the prohibition on the purchase and sale of insurance across state lines, it is interesting to note that this creates many of the imbalances in pricing that free market competition would correct. If an insurance company has more competition, services will improve and pricing will go down. Rather than treat the cause, "Obamacare" is trying to treat one of the symptoms with more regulation which will create more imbalances. This sounds much like the Clinton administration impetus for the creation of the subprime mortgage and the Obama administration's efforts to address the abuses. Creating a problem and then fixing it with more regulation to artificially influence the market is not a good solution. Not to get too far off topic, but I feel compelled to note that the United States did not have a problem with the mortgage market when buyers were required to have 20% of the purchase price. I could go on about how the Clinton administration's efforts hurt the rental market and how that particular chicken came home to roost when foreclosures started, but I will get back to the topic at hand. The root flaw with the political arguments of liberals is this: if it is a "good idea" (I use the term loosely) and the politician believes (genuinely or as a political power grab) it will benefit society (regardless of logic or the basis for the belief) or correct an injustice (real or imagined), then the Constitution of the United States should not be allowed to stand in the way. The problem with this framework, other than the fact that it eviscerates the political structure of the United States, is that it has no limits. Every "good idea" is thus lawful. All standards for what the federal government can and cannot do go out the window. We then have a government of men and women, not one of law. When this happens, we will lose our way of life one "good idea" law at a time.

Wednesday, December 15, 2010 at 5:13 PM

Bill said:

P3orion - the demoncrats have ALREADY forced us all to buy health insurance. Except of course those they have personally excused through waivers. The last thing they would ever allow is for the public to go armed; in fact, socialists are determined to disarm the public (you can't form a solid dictatorship to dictate the means of production and distribution if you can't control the pawns). As for them taking things to their logical conclusion, socialists only care about achieving their socialist aims, not the least as to what it takes to do it. Hence, they don't and won't understand their own BS or what it means. The logical conclusion of socialism is communism and, when that has proven to fail, fascism. Again, socialists don't care. And today the American public is by and large too apathetic and stupid to get it.

Wednesday, December 15, 2010 at 8:42 PM

Max said:

"The federal government can make you do something if your failure to do it, combined with similar inaction by others, has a "substantial effect" on interstate commerce."COULD THIS BE the way to bring this out of control government to its knees? Everyone - disconnect from the 'grid' at once! Let's kill this interstate commerce puppy before it grows up and eats us all for dinner.

Wednesday, December 15, 2010 at 9:04 PM

Blue said:

"During Supreme Court Justice Elena Kagan's confirmation hearings last summer, Sen. Tom Coburn asked her whether a law requiring Americans to eat their fruits and vegetables could be justified as an exercise of the federal government's constitutional authority to "regulate commerce ... among the several states." Kagan's stubborn resistance to answering Coburn's question suggested it was not as wacky as it may have seemed."Coburn's question may not have been "as wasky as it seemed" but there is no doubt in my mind that Kagan is as wacky as she seems....

Friday, December 17, 2010 at 12:29 PM

Jeff Rosenbury said:

My income isn't enough to cover my medical insurance. If this law is not struck down I will be sent to prison for it. At least there I'll get free medical care.I realize the stereotype Republican is a rich banker type, but the reality is different. When I look at the boards of directors of the big companies, they are mostly liberals. Just because I'm poor doesn't mean I don't love freedom, just that it's easier to take away.

Saturday, December 18, 2010 at 6:33 AM