Posted on 12/20/2010 9:41:53 AM PST by tysonbam
Health care repealers got a boost when Judge Henry E. Hudson of the Federal District Court in Richmond struck down the individual mandate and directly dependent provisions in the Patient Protection and Affordable Care Act. Virginias attorney general Ken Cuccinelli and solicitor general, E. Duncan Getchell Jr. have argued the powers extended in the commerce clause to regulate economic activity do not include economic inactivity.
The commerce clause states, The United States Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. I acknowledge there are compelling arguments in some situations against interpreting the constitution according to original intent. There are situations when original intent is difficult to determine. The commerce clause defines three enumerated powers: the power to regulate commerce with foreign nations, among the several states, and with the Indian Tribes. This distinction of three separate powers implies that there are powers regarding regulation of commerce that do not fall under these categories. If that were not the case the commerce clause would state, The United States Congress shall have power to regulate Commerce.
In Wickard V Filburn in 1942, Filburn, a small farmer, grew more than his quota of wheat and used the excess for personal use. Secretary of Agriculture Wickard assessed a penalty against him to which Filburn objected. In the case that followed two questions were pondered. First, can Congress regulate the production of wheat intended for personal use and not placed in interstate commerce? Second, can Congress regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power? The Jackson court said, yes to both.
With these new expanded powers to regulate trivial activity on personal property deemed to affect commerce, Congress has the authority to tell individuals they cant plant a garden or tomatoes in a topsy-turvy. They have the authority to tell grandmothers they cannot knit blankets or socks for grandchildren because the activity affects commerce. The scope of the ruling is frightening. Freedoms are more often than not lost bit by bit over time. The long term possibilities with such broad powers of regulation open the door wide to the slow destruction of freedom in America.
Still Anton Scalia took the commerce clause even further in Gonzalez V Raich. Raich had medical conditions for which she tried multiple medications, to most of which she was allergic. She grew marijuana for medicinal purposes and her doctor claimed her life was at stake without the use of medicinal marijuana. To this claim Scalia ruled in a concurrent opinion with Justice Stephens.
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate non-economic intrastate activities only where the failure to do so could undercut its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between what is truly national and what is truly local.
This ruling asserts that a tangential relationship to government regulation allows the federal government to step in and exercise unlimited power under the commerce clause. Scalia establishes the power to regulate non-economic intrastate activities beyond the scope of interstate commerce where the failure to do so could undercut its regulation of interstate commerce. Under this premise, any act interpreted to undercut the market then becomes subject to regulation. Any act that affects any market is then subject to regulation and any action we do affects the market. What then is beyond the scope of regulation?
In contrast to Scalias concurrence, Justice Thomas also wrote a separate dissenting opinion, stating in part:
If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."
We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite . . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Relating to the health care debate, if the individual mandate is ruled constitutional, either by interpreting inactivity as activity as Attorney General Holder advocates, or inactivity is ruled to fall under the commerce clauses broad powers, then the commerce clause in relation to intrastate commerce ceases to have even a theoretical limit. Why then would the constitution stipulate among the federal governments enumerated powers that The United States Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, if it meant it has total power to regulate every form of commerce?
If the specific powers enumerated in the commerce clause have no boundaries, then why the specificity in the Constitution?
If government has the power to tell you what activities you can and cannot participate in and what activities you cannot abstain from is there any freedom left? Without Constitutional grounds to reject any government intervention on economic activity, what separates us from serfs? If abstaining from health insurance is unlawful then the government has the authority to regulate health? When activity or inactivity relating to health care falls under the commerce clause, what stops government from outlawing salt, skateboarding or sports? Furthermore, with the court justifying our loss of freedom what recourse do we have? The difference between the Chinese economic model and ours becomes a matter of shades of gray. What separates us from China besides the level of intrusion the government has exercised?
Without the right to choose how can we hold the right to life, liberty and pursuit of happiness?
Millions have died throughout history fighting for freedom. It is insane that we would give it up for anything at all, much less for legislation half of Americans oppose.
This debate is much larger than health care. It is about the powers of government and the future of democracy. As Benjamin Franklin famously said, "Those who would give up Essential Liberty, to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
Tyson Bam December 16th, 2010
Thanks for posting an interesting and insightful essay.
FWIW, I have found other essays of yours similarly well written and have enjoyed the visits I have made to Rancor News. You’ve got a good group there.
With regard to the article, you are, of course correct. It’s all about control and it’s a huge over reach and abuse of the Commerce Clause.
Hopefully it will be struck down through further challenges in other courts, but if not - there’s always the underground economy.
Madison famously asserted that the Federal Government did not have the authority to outlaw murder.
We have come a long way, baby!
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