On November 30, 2010, District Judge Norman Moon of the United States District Court for the Western District of Virginia issued a decision granting the government’s motion to dismiss claims challenging the constitutionality of the Obamacare requirement that individuals and/or employers purchase healthcare insurance, i.e. the individual mandate. The case is Liberty Univ., Inc. v. Geitner, Case No. 6:10-cv-00015-nkm. Peter Suderman links and discusses it at Reason‘s blog here.
It is an interesting decision that, along with all the other challenges, is almost certainly headed to the United States Supreme Court in due time. Reading it reminds me of just how far from the framers’ intent and the Constitution’s words the Commerce Clause has been “interpreted.”
As many have forgotten, the framers intended the Constitution to provide enumerated power to the federal government, with the States and the People reserving all others. The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, Congress requires a delegation of authority under the Constitution to act.
The Liberty University case relies on the Commerce Clause to determine that the individual mandate is within the scope of Congress’s delegated powers. While I think that conclusion is insane, and the framers would be spinning like dreidels (in honor of Hanukkah) in their graves at the thought, it is also probably correct under existing Supreme Court cases, which the district court was bound to follow.
The Commerce Clause is a simple declarative statement: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” A normal person would read that sentence and conclude that one must be engaged in interstate or international commerce, or commerce with the Indian Tribes, for their conduct to be regulated. A normal person might also conclude that only conduct within the course of that trade could be regulated.
Thus, a normal person would be forgiven for having the simplistic notion that, for example, transactions conducted face-to-face at a farmers market involving locally grown vegetables are beyond the reach of Congress. A normal person might also think that Congress cannot regulate their growing tomatoes in the backyard, or building bookshelves in the garage, for use in their own home.
But our Supreme Court is not staffed by normal people. It is staffed with people from Harvard and Yale. And at times, a majority of them have scoffed at the simplicity seen in declarative sentences by simpletons such as normal people, i.e. people not from Harvard or Yale.
Two examples are the majorities in the cases the court relied upon in Liberty University.
In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court upheld a federal statute penalizing farmers who harvested wheat in excess of quotas established by the Department of Agriculture, including wheat that the farmer might harvest for his own farm needs.
But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce….
317 U.S. at 128-29. The Court therefore dismissed the plaintiff’s argument that, by forcing farmers into the market to purchase wheat that they could otherwise grow for themselves, Congress exceeded its powers under the Commerce Clause.
In Gonzales v. Raich, 545 U.S. 1 (U.S. 2005), five Justices reaffirmed this expansion of the reach of the Commerce Clause. In Raich, the Court held that “Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally,” even when the drugs — medicinal marijuana — were produced and consumed by one person with no commercial transaction. All the Court required was a “rational basis for concluding that leaving home-consumed marijuana outside federal control would . . . affect price and market conditions” in the actual market. 5 U.S. at 19.
It is hard to argue, under this formulation, that the decision not to participate in the insurance market might “affect price and market conditions” in the insurance market. Shoving 30 million people into the insurance market very likely would have some sort of impact.
Moreover, the Raich and Wickard decisions each determined that the fact that “regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.” In other words, Congress can pretty much do whatever the hell it pleases so long as something might conceivably impact a market it wants to regulate.
As I said, it does appear that current precedent would permit the latest unconstitutional power-grab by Congress. It would also permit Congress to require everyone in the United States to buy a Chevy Volt, to ban the handyman’s production of bookshelves for his own use in the home, to ban the growing of tomatoes in backyard gardens, or to mandate that everyone eat nothing but Ho Hos during months with an R in them.
The Supreme Court would do the cause of freedom and adherence the rule of law — the actual Constitution — by overruling Raich and Wickard and reimposing some limits on the rapacious grasp of Congress.