PROFESSIONAL
BARACK OBAMA
AND THE INTERSTATE
COMMERCE CLAUSE BY JACOB A. HALE / THE HALE LAW FIRM
care system, but our basic notions of federalism and individual liberty, we must begin with the actual text of the Commerce Clause and the Court decisions interpreting those words. When asked by a reporter where in the Constitution is Congress granted the authority to impose an individual mandate to buy health insurance, House Speaker Nancy Pelosi sneered, “Are you serious?” Twenty-six states found the question serious enough to bring suit on behalf of their citizens and in March, the Supreme Court, our national embodiment of seriousness, will hear arguments with a decision expected by June. The Justices will take up four questions regarding aspects of the law, the most important of which is whether the individual mandate, under which all persons must either purchase health insurance or pay a fine, falls within the Congressional power to regulate “interstate commerce.” ObamaCare requires virtually every American to obtain health insurance by 2014. Supporters of the law insist that stripping the individual mandate from the 2,400-page bill will render its other provisions ineffectual. The stakes are even higher to the law’s detractors. If the Court finds that it is within the federal government’s power to order the purchase of a particular item, there is no limit to what activity the government can command. If Congress can require you to buy health insurance because your lack of coverage may, in some vague way, impose costs on the wider economy, then by the same reasoning it can require the purchase (or sale) of almost any good or service, since the failure to have or use any product can always be said to have some economic impact. In order to fully understand the question the Court will address and the enormous impact the decision will have on not only our health
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LIVING-MAGAZINE.COM
JANUARY-FEBRUARY 2012
Clause 3 of Article 1, Section 8 of the Constitution grants Congress “the power…to regulate commerce with foreign nations, among the several states and with the Indian tribes.” Early court decisions interpreting the Commerce Clause held firm that economic activity conducted within the boundaries of a single state were beyond the grasp of Congress. In Gibbons v. Ogden (1824) Chief Justice John Marshall held that “state inspection laws, health laws, and laws for regulating the internal commerce of a State…are not within the power granted to Congress.” By the 1930s, the country was in severe crisis and an expanded federal government seemed to be the only solution. The programs of the New Deal enjoyed wide popular and bipartisan political support. The Supreme Court did its part by slowly eroding the limitations of the Commerce Clause in a series of decisions. Then, in 1942, the dam broke. Roscoe Filburn, a small Ohio dairy and poultry farmer, planted 23 acres of wheat in the fall of 1940 and by July of the next year he had harvested 462 bushels. Unfortunately, this exceeded the production allotment imposed by the Agriculture Adjustment Act of 1938. The goal of the Act was to stabilize the market price of wheat by preventing shortages and surpluses. For Filburn, this meant a steep fine of $.49 per bushel and an order to destroy the wheat. Filburn refused to pay and used the excess wheat as feed for his livestock and food for his family. The case eventually wound up at the Supreme Court. Because Filburn’s crop reduced the amount of wheat he would buy for chicken feed on the open market, the Court held that the wheat grown on the Filburn farm, though consumed on the premises and never shipped out of state, sufficiently affected the national
economy to permit federal regulation of Mr. Filburn’s crop. The current Supreme Court now has the chance to revisit Wickard v. Filburn and restore the original meaning of the clause. So how will it all turn out? It is almost certain to be a five-to-four decision, but in favor of whom? The four Democrat-appointed Justices—Ginsburg, Breyer, Sotomayor and Kagan—will likely uphold the mandate. Likewise, Justice Thomas will unquestionably vote to strike the law. That leaves Justices Scalia and Kennedy, who share mixed records in Commerce Clause cases, and Chief Justice Roberts and Justice Alito, who have yet to hear such a case since joining the highest court. Speaker Pelosi’s flippant dismissal of the Constitutional question has long been the prevailing attitude of Congress at large, a body which must cite Constitutional authority for the laws they pass. Who can blame them? The Commerce Clause is no longer read as a limitation on federal power, but carte blanche to impose sweeping edicts on unwilling states. If the individual mandate is enforced, the government’s power will extend from the regulation of existing commerce to the compulsion of its citizens to participate. In Federalist No. 45, James Madison affirmed the Founders’ insistence that the powers delegated to the federal government are “few and defined,” while those left to the states “are numerous and indefinite.” We will soon learn whether those words still have meaning.
Jacob A. Hale is an elder law and estate planning attorney at The Hale Law Firm, P.C. in Waxahachie. To learn more about this topic, please visit www.TheHaleLawFirm. com or send an e-mail to the author at Jacob@TheHaleLawFirm.com.