Posted on 09/17/2009 1:16:59 PM PDT by RepublicnotaDemocracy
by Rob Natelson
Speaker Nancy Pelosi has issued a press release in which she purports to rebut those of us who have expressed doubts about the constitutionality of some health care reform plans.
Pelosi (or her ghostwriter) claims:
"The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states... or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited. (bolded in original).
For several reasons, this is a highly misleading statement.
First, it fails to mention a concern expressed by many constitutional scholars, including those on the Left: Substantive due process.
"Substantive due process" is the doctrine by which the Supreme Court strikes down laws it deems unacceptably interfere with personal privacy or autonomy. Health care laws that, for example, limit one’s ability to fund and control one’s own health care could well run afoul of substantive due process rules.
Second, the statement fails to mention that, while the Supreme Court has upheld many delegations of power from Congress to executive branch agencies, the Court has affirmed repeatedly that there are limits. Some health care proposals involve wider delegations of authority than any since the New Deal’s National Reconstruction Adminisration (NRA) -- which was invalidated by a unanimous Court.
Third, the Pelosi release disregards the fact that on several occasions the modern Supreme Court has struck down overreaching federal legislation, supposedly adopted under the Commerce Power. Also, on several occasions, the Court has interpreted congressional acts narrowly to avoid constitutional conflicts.
Fourth: Pelosi (or her speechwriter) clearly misstate the current Supreme Court’s test for laws under the Constitution’s Commerce Power. The statement that Congress can regulate "activities that have an effect on interstate commerce" should be that Congress can regulate "economic activities that have a substantial effect on interstate commerce." Non-economic activities, such as some health care decisions, would have to meet a much stricter test. This may seem to be a minor mistake, but for legal purposes it is an important one, and one that, for the Speaker of the House of Representatives, is not easily excusable.
Finally, Pelosi (or her ghostwriter) commits the mistake of failing to look at wider judicial trends. One of these trends is the long-term movement by the Supreme Court toward interpreting the Constitution according to its real meaning – the original understanding of the Founders and Ratifiers.
And virtually no knowledgeable person thinks government health care is constitutional under that standard.
Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.
The power to regulate health care is essentially unlimited...just like the power to regulate someone growing wheat for their own consumption.
I don’t think the government wants to be touching the tomato plants in my Italian neighborhood.
I don’t think the government wants to be touching the tomato plants in my Italian neighborhood.
Hey, it’s a new life on politicians.
There are no lies ... only half-truths, obfuscations and general misdirection.
No one ever accused Nancy Pelosi of being a Constitutional scholar.
But she does well at spouting leftist dogma.
The Constitution presents no threat to our government.
“interstate commerce”....one of a handful of EPIC FAILS by the Framers.
Levin and even Ron Paul can talk about the Constitution all they want, but realistically congress and White House passes whatever the SCOTUS will accept, and they for the most part, just roll the dice to decide or use politics, or personal beliefs
The voters will never even read the constitution. You think all those million of naturalized citizens under GWB 8 years have a clue about this?
Regulate and ownare two different things. What regulatory concept gives the US Government the right to become a competitor for commercial healthcare?
The Commerce Clause is almost as played out as the Race Card.
” the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.”
Where, Nancy? Could you please point out the passage in the Constitution? Thanks.
What a poorly-reasoned argument from this law professor. Five objections - none of which address the glaring errors and tyrannical audacity in Pelosi’s statement, and all of which hinge on extra-Constitutional lawyerisms.
But of course, to the man with a hammer, the whole world looks like a nail. This law professor needs to visit the real world sometime.
It is a contradiction which would lead intelligent people to check their premises.
I’m surprised there’s been so little comment on the government take over of student loans today.
Wasn’t the Framers fault. Look to the Judiciary on that one...
I don’t see how interstate commerce applies - since you CANNOT get insurance from an out-of-state provider at this time !!!
Baloney. Like they didn’t know what a judiciary was capable of? They totally failed on that one, and it’s not like the matter wasn’t debated at the time. It was. Same goes for “necessary and proper” and “general welfare.” EPIC FAILS all.
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