The Spectacle Blog

Reining in the Commerce Clause

By on 6.28.12 | 1:30PM

Though the Supreme Court ruled to uphold Obamacare today, five justices agreed that the individual mandate -- the requirement that all citizens purchase health insurance or pay a penalty -- could not be justified under the Constitution's Commerce Clause. Here's an excerpt from the dissent written by justices Scalia, Kennedy, Thomas, and Alito:

The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one's own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity. [...]

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, "the hideous monster whose devouring jaws ... spare neither sex nor age, nor high nor low, nor sacred nor profane."

Over at NRO, John Fund suggests this represents a modest victory:

In other words, Randy Barnett, David Rivkin, and the other lawyers who argued that the individual mandate was an unprecedented expansion of the Commerce Clause's power were right. They may have lost the battle on Obamacare, but they now have some weaponry to win future battles on this issue. In a major case, the court has found the Commerce Clause indeed has some limits in a major case, and that really hasn't happened since the New Deal court basically abandoned the traditional Constitutional reading of that clause in 1937.

Kevin Drum takes a different veiw at Mother Jones.

[T]o the extent that this sets any precedent, it's only that Congress can't force people to engage in commerce. That's not something Congress has done before or is likely to need to do in the future. The taxing power is sufficient for most purposes, and existing precedent on the Commerce Clause, which allows Congress nearly unlimited power to regulate existing commerce, is sufficient for the rest. So I doubt this decision will have much real effect on future legislation. It will be very easy to write nearly any kind of legislation that stays inside the court's new rules.

I haven't yet read the opinions in their entirety, but from the portions I've seen, I'm inclined to pessimistically agree with Drum.

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