How far can Democrats distort the commerce clause?: The question for the health insurance bill

This discussion in the WSJ puts the point very simply.

Last week, the Texas attorney general, Republican Greg Abbott, wrote that a federal mandate to carry health insurance "threatens individual liberty." Florida Attorney General Bill McCollum, a Republican running for governor, held a press conference in December to make the same point.

Democrats dismiss the Republican arguments as a last-ditch effort by the minority party to block the majority's will. They say the plan is grounded in basic powers the Constitution grants Congress: to regulate interstate commerce, collect taxes and "provide for the general Welfare."

Since the New Deal era, the Supreme Court has broadly interpreted congressional authority under the Commerce Clause. Congress has successfully invoked that power to limit the amount of wheat farmers can grow, ban racial discrimination at restaurants and prosecute medical patients for raising marijuana to alleviate their symptoms.

But the court has never considered a federal program structured like the health overhaul, which would require people without insurance to buy it or face a tax or penalty. The nonpartisan Congressional Research Service said in July that it was a "challenging question" whether the commerce power extends that far.

Democrats and their allies say that despite its novelty, the insurance mandate falls within the definition of interstate commerce. The Senate bill cites data to show the importance of the health-care industry to the national economy and the damage caused by leaving millions of Americans uninsured.

Requiring the uninsured to buy coverage will "create economies of scale" and "is essential to creating effective health-insurance markets," the bill says.

Republicans argue that while Congress can regulate economic activity, the failure to buy insurance amounts to inactivity -- and the Constitution doesn't give Congress power to regulate that.

"Anything we have ever done, somebody actually had to have an action before we could tax or regulate it," Mr. Ensign said on the Senate floor. . . .

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Blogger Unknown said...

One should rather ask if it's even theoretically possible to distort the clause more than it already is. When prohibition supporters undertook to prohibit alcohol about a century ago, both they and their opponents openly conceded that the only way the federal government could do so would be by way of a constitutional amendment. Hence the 18th Amendment.

A decade or so later the government undertook to prohibit various drugs and regulate firearms using the blatant fiction of revenue programs. They were able to get the general population to look the other way by assuring them that they were only going to crack down on drugs that others (i.e., Blacks, Latinos and Chinese) used, or rather abused, and guns favored by gangsters. They've been so successful in getting people to swallow this ruse that they openly assert that they have the authority to regulate and even prohibit guns that have never crossed a state line without any fiction of revenue programs.

They can get away with this even among people who bother to read the Constitution thanks to the US Supreme Court. Since 1942 (thanks to another economic "emergency" prolonged by programs sold as remedies) the Court has held that the Commerce Clause gives the federal government the authority to regulate goods that have never entered interstate commerce, but might possible affect the supply of or demand for other goods that are in interstate commerce. In simple terms, if the government decided it needed to help the motion picture industry to prevent the collapse of the economic system, it could regulate or prohibit community theater, oon the grounds that people might be more likely to to to the movies or buy videos in the absence of theater.

1/11/2010 4:44 PM  

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