Discussion on the intent of the Commerce Clause

Dec 25, 2009 | Jim Robinson

[Jim Robinson]

Senator Diane Feinstein (D-Calif.) said that Congress has the authority to mandate that people buy health insurance and that there is no constitutional limit on Congress’ power to enact such mandates, adding that this unlimited authority stemmed from the Commerce clause of the Constitution.

And apparently 59 other Democrat senators agree with her.

It is my understanding that the intent of the commerce clause is to assign the responsibility of regulating commerce (the transportation and trading of goods with foreign Nations, and among the several States, and with the Indian Tribes) to the central government, taking the law-making responsibility for “inter-state trade and foreign trade” out of the hands of state government. Its purpose is to ensure that trade flows smoothly and unrestricted among the states and that foreign trade CAN be restricted by taxes and tariffs, etc, by the congress where necessary and appropriate to promote the domestic economy.

It was never intended to regulate the agricultural industry itself, or the manufacturing process of products or goods, or services, and definitely NOT to regulate or tax individual FREE citizens.

And the commerce clause was never intended to regulate trade among private citizens, nor does it regulate intra-state commerce, nor does it override states rights to govern themselves. The 10th amendment rules!

We the people continue to enjoy our God-given unalienable rights to Life, Liberty and the pursuit of happiness also including among others the constitutional rights to private property, security in our homes and private affairs, due process, presumption of innocence, right to trial before a jury of our peers, etc, and the rights to self-defense and to defend ourselves and our property and our posterity against tyrannical government!

Somebody please tell me where I'm wrong.

[Carry_Okie]

At the time, that meant having a sufficient naval presence to prevent smuggling, and that takes money.

As does the national defense infrastructure to preclude reconquest. In part, the States were effectively giving up a revenue stream for purposes of national defense.

[vg0va3]

With the mandates not in force until 2014, any damages could not be claimed until that time.

Maybe not. The taxes begin once the bill is signed. If I pay quarterly taxes and have to pay a fine and I pay the amount required. I have been directly affected by the act. I would then immediately have the ability to then file a lawsuit in the United States Court of Federal Claims to recover the contested amount paid on the grounds the tax violates my rights under the 9th and the 14th Amendments.

For an idea how to create a better system, I suggest you take a look at what Utah has done.

http://www.workforce.com/section/00/article/26/25 /09.php

Or see this from Heritage Foundation:

http://www.heritage.org/Research/healthcare/wm2569.cfm

The Insurance agents will not like it, but it works.

[grumpygresh]

Yes, but the farmer in the case actually produced his own wheat for his personal and farm animal consumption. In not buying health insurance, a person does not actual do anything. He does not grow wheat or feed livestock. As many have noted, we would not need an incentive like cash for clunker or caukers and simply compel the purchase of a car or caulk etc.
This is a leap even beyond the flawed Wickard vs Filburn decision which would transform the US Constitution into a document that has a pernicious and tyrannical effect on its citizens. In fact, non-citizens would actually have more rights than citizens because the non-citizen would not be compelled to buy health insurance.

[tacticalogic]

As does the national defense infrastructure to preclude reconquest. In part, the States were effectively giving up a revenue stream for purposes of national defense.

There is no denying that there is an overlap between the two. I believe Thomas Jefferson made some arguments to that effect with regards to authorizing the building of a lighthouse, but I don't have the reference at hand.

[tacticalogic]

In not buying health insurance, a person does not actual do anything.

The standard is that it causes "a substantial effect on interstate commerce". There doesn't appear to be any distinction between an effect caused by action and one caused by inaction.

[centurion316]

Damn that Filburn not buying wheat! Who the hell did he think he was, growing the stuff on his own, for his own purposes. We’ll show him who’s in charge.

Any of you folks out there growing your own tomatoes?

[tacticalogic]

Mabe they assumed no one would challenge? Maybe they assumed if someone does, then the fed is off the hook?

I think it was just to give Nelson something to sell it with back home. All that mattered was getting that vote. If it gets challenged and they lose their fedbucks, somebody else is the bad guy, so it's no skin off their backs.

[ResponseAbility]

****The claim of authority to regulate either one originates in the New Deal Commerce Clause. Read Wickard v Filburn. If not buying wheat can be considered “commercial activity”, then so can not buying insurance.****

This is addressed by EBH’s point that the wheat is a good and insurance is a service and therefore not subject to the CC.

[publiusF27]

Where the regulation is essential to a system of comprehensive regulation of interstate commerce, as Scalia stated. And which you failed to address.

But how can regulating things that don't have an effect on commerce be essential to regulating commerce?

[grumpygresh]

I believe that the Wickard vs Filburn decision is also flawed even with argument of substantial effect. Yes, one can argue that not buying insurance has a substantial on insurance prices consistent with Wickard vs Filburn logic (actually illogic). But that argument can be made about ANY activity or inactivity. Using the Wickard vs Filburn reasoning, I challenge you to tell me a specific activity or inactivity by a US citizen that conceivably would NOT have an effect on commerce? A person must spend his either time positively affecting commerce (by engaging) or not affecting commerce (not engaging). Either states could conceivably affect commerce.
Furthermore, why must US citizens be subjected to purchasing health insurance when resident aliens are exempt? Doesn’t this make the Constitution a tool for repression rather than a repository of rights?

[grumpygresh]

Correction: A person must spend his either time positively affecting commerce (by engaging) or not affecting commerce (not engaging).
Should read: A person must spend his either engaging in commerce or not engaging in commerce.

[Mojave]

But how can regulating things that don't have an effect on commerce be essential to regulating commerce?

Read the case.

Individuals who don't sell their pot don't substantially impact interstate commerce. Individuals who do sell their pot do substantially impact interstate commerce in the aggregate.

There's no way to know with any reasonable degree of certainty which one will and which one won't, so both fall within the regulations.

[publiusF27]

Individuals who do sell their pot do substantially impact interstate commerce in the aggregate.

And which case says that aggregated substantial effects constitute a need for regulation? Wickard. Now do it again without Wickard, and it will all fall apart, just as I said.

[Mojave]

And which case says that aggregated substantial effects constitute a need for regulation? Wickard.

The word aggregated doesn't even appear in Justice Jackson's decision.

Now do it again without Wickard, and it will all fall apart, just as I said.

Empty assertion.

So let's do it again without Wickard.

Individuals who don't sell their pot don't substantially impact interstate commerce. Individuals who do sell their pot do substantially impact interstate commerce in the aggregate.

There's no way to know with any reasonable degree of certainty which one will and which one won't, so both fall within the regulations.

Now try to address the argument.

[publiusF27]

The word aggregated doesn't even appear in Justice Jackson's decision.

No, he used these words to describe the aggregation principle he was applying:

That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the [p128] scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.

Are you denying that Wickard is the genesis of combining the substantial effects test and the aggregation principle just because they didn't use that particular word in the decision? You're making me really miss robertpaulsen.

[Mojave]

Are you denying that Wickard is the genesis of combining the substantial effects test and the aggregation principle just because they didn't use that particular word in the decision?

You wanted to do it without Wickard, then you immediately flee back to moaning about Wickard.

Address the argument or admit that you can't.

Individuals who don't sell their pot don't substantially impact interstate commerce. Individuals who do sell their pot do substantially impact interstate commerce in the aggregate.

There's no way to know with any reasonable degree of certainty which one will and which one won't, so both fall within the regulations.

[publiusF27]

Asking a question is not moaning about Wickard, and I think your argument depends on Wickard because without Wickard there is no precedent for combining aggregation with substantial effects. That's the reason Wickard is considered important.

Additionally, I should point out that I did read Scalia's opinion, but you seem not to have done so. He specifically said that:

Although this power “to make … regulation effective” commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce.

To justify his reasoning, you go straight to Wickard's substantial effect/aggregation arguments, but that is exactly what he was saying (and I'm denying) is necessary. Guess I was right, it is necessary or you would not be doing it.

[publiusF27]

Oops, meant to say unnecessary instead of necessary.

[Mojave]

To justify his reasoning, you go straight to Wickard's substantial effect/aggregation arguments....

Look, if you're afraid to address the argument I posted, just admit it.

One last chance, then I'm done with you.

Individuals who don't sell their pot don't substantially impact interstate commerce. Individuals who do sell their pot do substantially impact interstate commerce in the aggregate.

There's no way to know with any reasonable degree of certainty which one will and which one won't, so both fall within the regulations.

[publiusF27]

We're wandering in circles.

My original question to you:

How can it be essential to regulate things that have no substantial effect at all?

Where the regulation is essential to a system of comprehensive regulation of interstate commerce, as Scalia stated.

But how can regulating things that don't have an effect on commerce be essential to regulating commerce?

Individuals who don't sell their pot don't substantially impact interstate commerce. Individuals who do sell their pot do substantially impact interstate commerce in the aggregate.

Bringing us back to my original question:

How can it be essential to regulate things that have no substantial effect at all?

If you won't answer that one, answer this one: is there a Supreme Court precedent that you can name that says that if an intrastate, non-commercial activity can, in the aggregate, affect interstate commerce it can be properly regulated under the commerce clause? (I mean one that doesn't start with W, of course).