Passive Resistance

Excluding inactivity from the Commerce Clause still leaves Congress with far too much power.

Ronald Reagan famously summarized the federal government's attitude toward the economy this way: "If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it." Last week a federal judge added a corollary: If it doesn't move, don't regulate it.

In overturning the Patient Protection and Affordable Care Act, U.S. District Judge Roger Vinson said the law's requirement that every American obtain government-approved health insurance exceeds Congress's power to "regulate commerce…among the several states." While all the other regulations that the Supreme Court has upheld under the Commerce Clause have targeted some sort of activity, Vinson noted, the health insurance mandate is aimed at the failure to buy something Congress thinks everyone should have.

For constitutionalists as well as ObamaCare partisans, this activity/inactivity distinction, which was embraced by another federal judge in December, leaves much to be desired. But it is vastly preferable to the one-prong test that the Supreme Court has implicitly applied in almost every Commerce Clause case since 1937: If Congress wants to do something, who are we to stand in its way?

The main advantage of drawing a line between activity and inactivity is that it does not require overturning any of the Supreme Court's Commerce Clause precedents. That is also its main disadvantage.

As the historical section of Vinson's ruling reminds us, the Court has strayed far from the original understanding of the Commerce Clause, which was aimed at eliminating interstate trade barriers. At the time the clause was written and for many years afterward, "commerce" was understood to mean the exchange of goods (as opposed to manufacturing or agriculture), while "regulate" meant "make regular" by removing obstacles. And believe it or not, "among…the several states" meant "among the several states," as opposed to the purely intrastate activities that Congress routinely regulates (or bans) nowadays.

This narrow understanding of the Commerce Clause prevailed well into the 20th century. It explains why the Supreme Court in 1918 overturned a federal ban on the interstate transportation of goods whose production violated child labor laws, concluding that the power to regulate commerce "is directly the contrary of the assumed right to forbid commerce from moving." It explains why the dry activists who achieved National Alcohol Prohibition in 1920 had to do so by amending the Constitution. It explains why the Court, as late as 1935, rejected federal regulation of employee hours and wages at businesses that were not engaged in interstate commerce.

But as Vinson notes, "everything changed in 1937," when the Court held that Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce. That doctrine has led the Court to uphold federal regulation of activities, including the cultivation of wheat and marijuana for personal consumption, that are only remotely and hypothetically related to interstate commerce.

Since 1937, the Court has rejected just two provisions of federal law on Commerce Clause grounds: a ban on gun possession in or near schools, which it overturned in 1995, and a civil remedy for victims of gender-motivated violence, which it overturned in 2000. Those decisions were based on the Court's reluctance to "pile inference upon inference" in a way that would leave no activity beyond the reach of the Commerce Clause, thereby erasing the constitutional distinction between state and federal powers.

But as Justice Clarence Thomas noted in both cases, that danger will persist until the Supreme Court revisits the "substantial effects" doctrine. "By continuing to apply this rootless and malleable standard," he warned in 2000, "the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits."

Despite the apoplectic reaction to Vinson's ruling from ObamaCare's supporters, the Supreme Court will leave this situation essentially unchanged if it ultimately endorses his reasoning. If it does not, an instrument of free trade will be converted into an instrument of compulsory transactions limited only by the imaginations of meddlesome legislators.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Suki||

    Good morning reason!

  • ||

    "Editor's Note: We invite comments and request that they be civil and on-topic."

    Civil: Check.

  • TheOtherSomeGuy||

    Oh ye of little faith.

    Have faith that one branch of powerful government officials will look out for another branch of powerful government officials and over turn Vinson's ruling.

    They'll say "screw the US Constitution, we're talking about getting more power here!"

  • some guy||

    Interesting comment since the vote will likely come down to Kennedy and Kennedy loves to be in the spotlight. The very fact that his decision is the final decision puts him in the position of maximum power, no matter what he decides. Maybe he will decide that he wants to go down in history as the man who finally told Congress "Across this line you DO NOT..."

  • Sovereign Immunity||

    There is no guarantee that Kennedy will be the deciding opinion. I know you said "likely", but his opinion is not the only one that is subject to inconsistency in interpretation.

  • ||

    This aggression will not stand.

  • Jackrungh||

    I am the Walrus.

  • Fiscal Meth||

    Shut the fuck up Donnie!

  • Fiscal Meth||

    Also I don't Chinaman is the preferred nomenclature

  • Mensan||

    some guy|2.9.11 @ 7:30AM|#
    Maybe he will decide that he wants to go down in history as the man who finally told Congress "Across this line you DO NOT..."

    That caused an image to appear in my mind of Kennedy as Gandalf telling the Balrog of congress, "You shall not pass!"

    Damn, I'm such a geek.

  • ||

    Especially since it was a reference to a much cooler fictional universe to begin with.

  • Mensan||

    I know. That's why I'm so disappointed in myself.

  • Little Lebowski Urban Achiever||

    Mensan, you're out of your element.

  • ||

    Different mothers, huh? So he's pretty cool racially.

  • Stretch||

    I was thinking more Job 38:11

    "Hitherto shalt thou come, but no further: and here shall thy proud waves be stayed?"

  • Gandalf||

    From the lowest dungeon to the highest peak I fought the Balrog of Morgoth...

  • Jackrungh||

    Did you smote his ruin upon the mountain?

  • ||

    did you bestride him like a colossus of yore?

  • Fiscal Meth||

    Sure. But Kennedy have to roll an 8 or higher to actually stop it.

  • Fat Crack Ho||

    William Shatner: "You know, before I answer any more questions there's something I wanted to say. Having received all your letters over the years, and I've spoken to many of you, and some of you have traveled... y'know... hundreds of miles to be here, I'd just like to say: get a life, will you people?! I mean, for crying out loud, it's just a TV show! I mean, look at you, look at the way you're dressed! You've turned an enjoyable little job that I did as a lark for a few years, into a colossal waste of time!

    [ a crowd of shocked and dismayed Trekkies.... ]

    I mean, how old are you people? What have you done with yourselves?

    [ to "Ears" ] You, you must be almost 30... have you ever kissed a girl?

    [ "Ears" hangs his head ]

    I didn't think so! There's a whole world out there! When I was your age, I didn't watch television! I lived! So... move out of your parents' basements! And get your own apartments and grow the hell up! I mean, it's just a TV show dammit, it's just a TV show!

  • Fiscal Meth||

    That's hilarious. Did he really do that?

  • Mensan||

    It was a sketch on SNL.

  • ||

    How sad that there are some people who post here without knowing the easily verifiable, historically accurate answer to that question. FM: The "Get a life" remark is one of the pivotal acts that built Shatner's reputation (and pointed his career down the road of successful self-parody). I was watching TV that night, and my only regret was that I live(d) in the Pacific Time Zone, so did not and could not witness the moment "live."

  • Amakudari||

    From the judicial perspective, more power = narrow rulings and establishing ambiguous precedent. So no, they're not automatic yes votes for the executive (old, but it's still the best example). The Supremes could very well have a profound effect on Obamacare, but I don't think we can just assume they'll rubber-stamp it.

  • sarcasmic||

    Even if Obamacare is overturned in the Supreme Court I bet they'll implement it anyway.

    How can the court enforce it's ruling?

    It can't.

  • Name Nomad||

    Wouldn't be the first time that's happened. Andrew Jackson literally stole Cherokee land after the Supreme Court explicitly told him not to. But due to the HORRIBLE punishment he was dealt (e.g. being forced to die of old age in his mansion after his terms in office were over), I'm sure the current administration would eschew such actions.

  • Name Nomad||

    punishments*

  • ||

    So you kill a bunch in Injuns and you can get your mug on money?

  • Bill||

    They were standing in the way of "progress", dammit!

  • ||

    Actually, one could argue that putting Jackson's "mug" on a Federal Reserve Note was perhaps the worst punishment conceivable for a man who once said, to officials of the "Federal Reserve" bank of of his day, "You are a den of vipers and thieves. I have determined to rout you out and, by the Eternal, (bringing his fist down on the table) I will rout you out." Every twenty dollar bill is Bernanke and company flipping the bird to and dancing on the grave of President Jackson.

  • sarcasmic||

    Exactly.

  • ||

    Bring it on. Obama and his whole party might be done if they decided to do that. This ain't 1830.

  • sarcasmic||

    Obama and his whole party might be done if they decided to do that.

    Why? Those who want Single Payer couldn't give a fuck about the Constitution. If the Supreme Court strikes down their beloved takeover of health care, and Obama thumbs his nose at them, he'd be assured sainthood next to FDR, Mussolini and Marx.

  • ||

    We're not that far gone yet, I don't think.

  • Sovereign Immunity||

    You are much smarter than me, but I disagree.

    When 26 year olds can be legally counted as children for the purposes of welfare and I can legally steal from you at the point of a gun for whatever health need (and that is a HUGE umbrella), we're Greece. Melba Toast.

  • Michael Ejercito||

    You are much smarter than me, but I disagree.

    When 26 year olds can be legally counted as children for the purposes of welfare and I can legally steal from you at the point of a gun for whatever health need (and that is a HUGE umbrella), we're Greece. Melba Toast.


    In that case, we need to add a little something in the water.

  • sarcasmic||

    I think we are.

    We have a generation (or two) that has been taught that because the folks who wrote the Constitution were rich (evil) white (privileged) slave owners (shame), that the entire document should be discarded.
    Never mind what it actually says.
    Principals are more important than principles.

    Principals say that health care is a basic right.
    If the principles outlined in the Constitution disagree, then Constitution be damned!

  • ||

    I've got to say that my habit of standing on the sidelines and making snide comments might turn into political activism if the administration were to ignore a Supreme Court determination that a law is unconstitutional.

    And I'm sure I wouldn't be alone. I think we're down to a few strings keeping the constitutional framework viable, but that sort of defiance from an unpopular president strikes me as unlikely.

  • sarcasmic||

    What would you do?
    What would the courts do?

    You have no power.
    The courts have no power.

    It's the enforcers with guns who have the power.

  • ||

    They need the illusion of legitimacy to safely hold the power to wield those guns. Especially here, where we like to pay lip service to freedom and democratic principle.

  • sarcasmic||

    Democratic principle is being replaced with democratically chosen principals.

    All these waivers show we live not under rule of law but under rule of man.

    If the rest of the government decides to ignore the court, they will only be following those principals.

  • ||

    Defying a SCOTUS opinion would almost certainly lead to impeachment in a Republican House.

    And this wouldn't be some sloppy sex scandal, either. It would be a clear-cut violation of the rule of law.

    I don't think even Barack will go that far.

  • sarcasmic||

    I seem to recall that Senator scumbag from Nevada saying "We have given the American people the right to health care".

    Remember that?

    What would happen if the SCOTUS invalidates this bill?

    PrezBO would be letting the people know that they were given a right to health care, and that right was just taken away.

    He might say that the decision was wrong, that the people DO have a government given right to health care, and he will uphold that right by ignoring their decision.

    Anyone who disagrees wants to take away health care from the people.

    Then the evil Republicans try to impeach him for upholding the right to health care?

  • Michael Ejercito||

    I seem to recall that Senator scumbag from Nevada saying "We have given the American people the right to health care".

    Remember that?

    What would happen if the SCOTUS invalidates this bill?

    PrezBO would be letting the people know that they were given a right to health care, and that right was just taken away.

    He might say that the decision was wrong, that the people DO have a government given right to health care, and he will uphold that right by ignoring their decision.

    Anyone who disagrees wants to take away health care from the people.

    Then the evil Republicans try to impeach him for upholding the right to health care?


    Yeah, imagine the media soundbites of a President trying to defend his decision to defy the Supreme Court.

  • DLM||

    I seem to recall that Senator scumbag from Nevada saying "We have given the American people the right to health care".

    We already had a right to health care. We just don' have the right to make someone else pay for it. The power, maybe, but not the right.

  • ||

    You DO have power, you CAN own guns, and you HAVE the constitutional right to use them to protect your family, your property and your country from all enemies, external and internal. (read government.) What most people fail to understand is a takeover of the America by the US Governement is neary impossible. We have an all volunteer military. They serve the people, are the people, and will fall on their swords to protect the people. Nowhere in any document, Constitutional, military code or ctherwise are they required to care for and protect the governement unless threatened by other foreign states.

    I am pretty confident also that a revolution by some means is coming and it will not be pretty for those 3rd world socialist idealoges who prefer to take than to give. We have seen the liberals alliance with the enemies of the people and these alliances have left us wanting.

    2012 will be a watershed moment for those AMERICANS who remain confident in their belief that we are the only "shining city on the hill" and with that comes the responsibility to keep that city clean of the provoctuers and the agents of solcialism who threaten the very life we live. To HELL with the left and/or any politition who believes that he/she is there to rule and not lead. Whether in Washington or any state capital.

    This crap ends now! Vote them all out first. Impose recall rights on all elected officials at the federal, state and local levels. Recall rights make it much easier and cheaper to remove the a$$es. If they fail to understand the ramification of this move now, they will in the future.

    PT.
    HB, Ca.

  • Mensan||

    The oath I swore when I enlisted in the Army said:

    "...I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me according to regulations and the Uniform Code of Military Justice..."

    The Constitution comes before the President for a reason. It's illegal, and a violation of that oath, for the guys with guns to follow an unconstitutional order.

  • ||

    Try that out on the enlistee who defied his orders to report to a United Nations contingent led by a French general.

    A little jail time and bounced with a dishonorable.

  • Sovereign Immunity||

    The main advantage of drawing a line between activity and inactivity is that it does not require overturning any of the Supreme Court's Commerce Clause precedents. That is also its main disadvantage.

    Wouldn't have been more concise to reduce this article to "We are nine black robed demi-gods, and we will pull law out of our ass as we see fit, damn what the document actually says."

    Serious question for all you lawyers and law students: Why is the emphasis in law school on stare decisis and memorizing case law as opposed to applying the document as written? Why does the court place so much emphasis on precedent when it has been shown that many a precedent from Marshall on has been shown incongruent with the Constitution; why isn't this the main focus of law school, as opposed to social crusading for either conservative or progressive ideologies?

  • sarcasmic||

    Are you suggesting that school should teach students how to think instead of what to think?

    That's crazy talk!

  • Sovereign Immunity||

    Colour me crazy: that is precisely what I am suggesting.

  • ||

    The ink was still dry on my philosophy degree when I went to law school. I challenged stare decisis as being fallacious reasoning as it was an appeal to tradition or an appeal to authority. My evidence instructor patted on my little head and said, "whatever."

    This was my first day in the world of "Legal Reasoning." Which is, like the laws judges pull out of their asses, anything they want it to be.

    But as Vinson notes, "everything changed in 1937," when the Court held that Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce. ......was wrong. It was intellectual malfeasance. And those who suck at the cock of stari decisis should hold their head in shame.

  • sarcasmic||

    I challenged stare decisis as being fallacious reasoning as it was an appeal to tradition or an appeal to authority.

    But if you follow that fallacious reasoning and play your cards right, YOU may someday become that authority!

    What's a bit of fallacious reasoning if it means you can attain godlike power?

  • God||

    My first act, after attaining power, would be to have all mirrors destroyed so I never had to look myself in the face again.

  • Rich||

    Why is the emphasis in law school on stare decisis and memorizing case law as opposed to applying the document as written?

    I'm not a lawyer, but I know one. It's because more hours are billable with teh ever-expanding "researching".

  • ||

    Well, there is an idea that law shouldn't change easily, so that it's more predictable and simpler to apply. But stare decisis is only a principle of review--it's not binding. The Supreme Court (or other court if the issue hasn't made it all the way up) can completely reverse itself on any issue.

  • Barely Suppressed Rage||

    Serious question for all you lawyers and law students: Why is the emphasis in law school on stare decisis and memorizing case law as opposed to applying the document as written?

    Stare decisis has value, and the principle evolved for a reason. The primary reason is stability and predictability in the law. A highly desirable feature of law is predictability. If you know, based on precedent, what the consequences will be of certain actions, or of certain terms and conditions of an agreement you have with another person, you will be able to structure your business dealings accordingly and be confident that things will go as you expect them to.

    E.g., you enter a contract with someone to sell them 50,000 widgets at a cost of $150,000. You ship him the widgets, with terms FOB warehouse, net 30 ROG. You and he both know what that means. If he receives the widgets and 45 days go by and he has not yet paid you, you know what your recourse is and who should be liable.

    That's just a very simple example.

    When the SCOTUS issues an opinion setting forth a rule of law, it is binding and authoritative on all other courts in the country. That's just the way our system works. And when the SCOTUS does announce a new rule of law, it becomes part of the existing body of law, and now you have to incorporate that into your knowledge base and take it into consideration in structuring your affairs.

    But if it is the case that any court can just come up with its own answer any time a case comes before it, regardless of precedent, then you have no idea how to draft agreements or structure transactions or your affairs, because you have no way to confidently predict what would happen in the event of an disagreement.

    Stare decisis is meant to assure consistency and predictability over time so that people and confidently make business and personal arrangements without having to guess what might happen in the event of some disagreement.

    The problem is that too many people think stare decisis means that the court must follow its precedent merely because it is precedent. If there is good reason to disagree with or overrule precedent, stare decisis does not condemn you to stick with it anyway.

    However, the court has to take many factors into consideration when deciding to toss a precedent - because, just like any other precedent, it might have become broadly accepted and integrated as the law of the land, and changing it will, to some degree, cause disruption and unpredictability. But again, if the precedent is demonstrably wrong, then it should be overturned, period. My favorite example: The Slaughterhouse Cases.

  • Sovereign Immunity||

    Thank you for the very thorough answer and I understand the need for predictability in the law WRT contracts. I also understand why precedent is desireable, but it's the misapplication of the Constitution in the first place that gets me so angry. The most notable offending judges overall, IMO, being John Marshall (who started this mess), Hugo Black, Thurgood Marshall and Earl Warren. Granted no one will always agree with any justice all the time, and one person's judicial activism is another person's correct outcome, but gee whiz!

    My question is, particularly the most egregious examples of misapplication of the Constitution, Wickard v. Filburn and Kelo v. New LondonIMO, it just seems the court is very hostile to the right to private property and I don't see the court being favorable at all to striking all or even parts of this ObamaCare law?

  • Michael Ejercito||

    The most notable offending judges overall, IMO, being John Marshall (who started this mess), Hugo Black, Thurgood Marshall and Earl Warren. Granted no one will always agree with any justice all the time, and one person's judicial activism is another person's correct outcome, but gee whiz!


    How were Earl Warren and Thurgood Marshall offenders?

  • ||

    "I'll make the decision and let the law catch up".

    For beginners.

  • ||

    bingo! golf clap!

  • DJF||

    “””stability and predictability in the law”””

    If you want stability and predictability in the law then why not just follow the law as written and not as some judge interprets it. If the law is unclear or not applicable then send the law back to the Congress or legislator and tell them to come up with a better law. Instead of going back to what some judge opinion of the law is they should go back to the original law since that after all is the law.

  • Michael Ejercito||

    Why is the emphasis in law school on stare decisis and memorizing case law as opposed to applying the document as written?


    Because most law students will be arguing in lower courts, which are bound by stare decisis .

  • ||

    because the VAST majority of judges (and lawyers) must live or die by stare decisis.

    for example, whatever one thinks of obamacare (i'm agin' it) the latest court case in the news is an example of a district court judge pretty clearly ignoring stare decisis.

    DISTRICT COURT JUDGES (theoretically) can't do that. SOME judges can (higher up the chain) but DC judges aren't "supposed" to , lest every court decision at the lower level come down to ad hoc reinterpretation of the constitutional principles, etc. it's a rule of law thing.

    of COURSE obamacare is unconstitutional, btw.

    the commerce clause has been expanded beyond any recognition

    but in brief, in the vast majority of cases, stare decisis is supposed to respected, not overturned. the overturned cases (at higher court levels) are sexier and more famous of course, but the reality is that stare decisis is more likely to be the call of the day in most court cases.

  • Michael Ejercito||

    for example, whatever one thinks of obamacare (i'm agin' it) the latest court case in the news is an example of a district court judge pretty clearly ignoring stare decisis.


    When was the last time the Supreme Court ruled that Congress's power to regulate interstate commerce included the power to generally compel people to purchase a good or service?

  • ||

    i'm going to quote orin kerr on the issue of how the judge (vinson) kept switching back and forth between stare decisis and originalism and (at least arguably) exceeded his ROLE as a DISTRICT COURT judge. note that kerr is hardly a fan of obamacare OR the expansive reading of federal power under the ridiculous "interpretation" of the commerce clause.

    i think his argument is much better fleshed out than i could do...

    The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important. In the critical passage on the Necessary and Proper clause, on page 62–63, Judge Vinson relies primarily on original meaning, specifically Federalist No. 33.

    Thus, for example, on page 60, Judge Vinson rejects one of the arguments of amici on the ground that the result of the amici’s argument “would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.” And critically, on Page 62–63, Judge Vinson writes that the mandate cannot be constitutional because “[i]f Congress is allowed to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the ‘perfectly harmless’ part of the Constitution that Hamilton assured us it was [in Federalist No. 33], and moves that much closer to becoming the ‘hideous monster [with] devouring jaws’ that he assured us it was not.”

    If you are an originalist, as many VC readers seem to be, this is a very appealing argument. If you’re a libertarian, as many VC readers seem to be, this is also a very appealing argument. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

    If you’re going to take that view, I think you have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:

    [I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

    It seems to me that when the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis. That’s especially true when a Justice wrote a concurring opinion treating it as a doctrinal test, and no one corrected him. At the very least, this is language worth mentioning to explain why it’s not a test you’re think you’re bound to as a trial judge. But Judge Vinson doesn’t even mention this language. Instead, he focuses on Alexander Hamilton and Federalist No. 33. Given the gap between the original meaning of the scope of federal power and the case precedents, I don’t think this approach is persuasive for a District Court judge to take.

  • ||

    oh, and to argue briefly in response to your question- it's not just about commerce clause, it's about the "necessary and proper" clause, and the controlling case is comstck

  • ||

    But "among the several states" just MEANS within the United States, intrastate or not. Libertarians just cling onto one of the very first examples of judicial activism.

  • Gilbert Martin||

    Another troll in need of training wheels.

  • ||

    Try reading a little, if just meant within the United States, then it would have rad like this...

    To regulate commerce.., not like this

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

    The fact that it says among, means that "within" is excluded, else it would merely have been stated as a plenary power..to regulate commerce.

    and then this from Mr. Nationalist himself in Federalist 11....

    An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions

  • ||

    Yet foreign nations and indian tribes are not in the US.

  • Barely Suppressed Rage||

    Are you truly being this willfully ignorant? Do you utterly lack any reading comprehension skills whatsoever?

    NO SHIT that foreign nations and indian tribes are not in the U.S. Read the fucking Constitution - it empowers Congress to regulate Commerce -

    - Among the several states
    - With foreign nations, and
    - With the Indian tribes

    Are you claiming that the individual mandate is based on the power to regulate commerce with foreign nations or Indian tribes?

    The only portion of the Commerce Clause at issue here is that portion empowering Congres to regulate commerce "among the several states."

  • Sovereign Immunity||

    Which reminds me, how are those Indian Tribes doing with that Federally subsidized Indian Health Care?

    Now that type of health care can be regulated as per the Constitution.

  • Old Mexican||

    Re: scineram,

    But "among the several states" just MEANS within the United States, intrastate or not. Libertarians just cling onto one of the very first examples of judicial activism.


    "Commerce among the States" means just THAT: The commerce that happens among the states, as in BETWEEN states, as in anything that the STATES do against each other or in favor of each other (and in detriment of others) can be regulated. DOES NOT say "Commerce among The People" - the framers were actually pretty sharp in making THAT DISTINCTION. The ONLY people in the English Reading world that have stopped making that distinction are the STATIST FUCKS.

  • ||

    People aren't states? Then what about general welfare? OMG, did that mean what it really said also, the general welfare of the UNITED STATES, and not the people of the United States?

  • Old Mexican||

    Re: Len,

    People aren't states?


    NO, they're NOT. People are people, states are actually state governments.

    Then what about general welfare?


    What about it? Also, "general welfare" is placed there as a REASON for creating a union (i.e. "To promote the General Welfare"), but it is not a mandate to IMPOSE it.

    OMG, did that mean what it really said also, the general welfare of the UNITED STATES, and not the people of the United States?


    Len, I am a mere Mexican for whom English is his second language, yet eve *I* understand that the PLAIN READING OF "Commerce among the States" does not mean "between people."

    Maybe YOU understand a very different sort of English, or maybe you're deranged - I don't know.

  • ||

    Or maybe for the second time today you totally missed sarcasm.

  • Amakudari||

    Also:

    In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford.

    You know who else distorted zee Konstitution?

  • Rich||

    Mr. Creosote?

  • Bucky||

    no, no. he just distorted his belly...

  • ||

    The more I look at things the more apparent it becomes that fundamental reform of the US government will only happen when the Commerce Clause is reduced back to its earlier meaning.

    All of the non-defense and commerce related departments within the government are on very shaky ground without the Commerce Clause.

    For the life of me, I still do not understand why we have a department of educcation when the only national level schools the US has belong to the military.

  • Arne Duncan||

    For the life of me, I still do not understand why we have a department of educcation when the only national level schools the US has belong to the military.

    Behold.

  • ||

    Not to mention that during the framing of the US constitution a power over education was specifically rejected from being placed in the USC.

  • MJ||

    Education is IMPORTANT. Things that are IMPORTANT must have the federal government's fingers on them.

    That's pretty much the entire rationale.

  • roystgnr||

    But f you heartlessly force the rest of the country to handle education without D.C.'s help, how will our public schools continue becoming as good as the ones in D.C.?

  • Old Mexican||

    Re: roystgnr,

    Turn up your sarcam-o-meter... MJ was being facetious.

  • ||

    Right back at ya chief.

  • Old Mexican||

    But as Vinson notes, "everything changed in 1937," when the Court held that Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce.


    That's when the US really started to turn into a FASCIST State, courtesy of F.D.R.

  • ||

    But as Vinson notes, "everything changed in 1937," when the Court held that Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce.

    Vinson is exactly right. That is when the Court amended the Constitution to allow the feds to control economic activity (including production) within the states, not just trade among the states.

    Unfortunately, the Court does not feel it has the political capital to reverse that decision, as it would require the dismantling of a huge part of the national government that has been entrenched for generations.

    Fact of life: the Court, like all institutions, has as its first priority self-preservation. Undoing Wickard and demanding that vast swathes of the federal government be shut down is simply beyond them, and they know it, and they know the blowback would be very damaging to the Court as an institution.

    In a perverse way, the only way to restore the Constitution is to amend it.

  • Sovereign Immunity||

    the only way to restore the Constitution is to amend it.

    No, there is another Skywalker...a 2nd amendment Skywalker.

  • H man||

    I actually agree with amending the Constitution one to strengthen supposedly already existing clauses and two to actually expand the enumerated powers of Congress. Perhaps establishing a Center for Disease control and a few other things. We'd be in a similar pickle we are now but at least the idea of enumerated powers will be reinforced.

  • DLM||

    In a perverse way, the only way to restore the Constitution is to amend it.

    But before that happens the process of amendment must be amended. There needs to be a route that cuts out Congress altogether and that can be restricted to a single amendment since many a paranoid about a potential whole-cloth change in it. I don't think there is at this time.

  • ||

    Activity vs. inactivity? But, haven't we already been forced to buy things the government thinks we should have? For example, aren't we required to buy government-mandated retirement insurance (aka Social Security)? If this ruling holds, does that mean the end of SS?

  • sarcasmic||

    If you're self employed or otherwise not on a payroll you don't pay SS.
    Neither do government employees with pension plans.

  • ||

    I believe self-employed people do indeed pay social security taxes.

  • sarcasmic||

    You're right. My bad.

  • ||

    correct. fwiw, the social security analogy is a bad one. it's a totally different issue. social security is momney paid to the government (lockbox issues aside which is an ENTIRELY different issue than the govt. forcing you (and yes, they do force you - since there is a penalty if you don't do it) to buy a product from a private company or else face govt. sanction.

    note that this product is not based on any "activity" unless one counts being a breathing, living human being an 'activity' in which case activity is meaningless.

    contrast with, for example, many STATES (not even a federal issue) that require insurance or a bond for engaging in the privilege of driving a deadly weapon (motor vehicle) on a publically funded roadway (no insurance required for private roadways).

    what is ironic is that the far left would far prefer single payer (essentially medicare for all) which WOULD be constitutional whether or not it would be good policy.

    this "compromise" is clearly not (imo) constitutional.

  • ||

    No, because SS isn't based on a misreading of the Commerce Clause. Its based on a misreading of the General Welfare clause.

  • ||

    Misreading or just convenient cover?

  • Gilbert Martin||

    The misreadings are legion.

    Commerce Clause, "General Welfare", attempting to promote "Necessary and proper" into a full blown independent power on it's own, as far as liberals are concerned, the Constitution may as well have been written on an etch-a-sketch.

  • ||

    are you claiming that SS is unconstitutional? whether or not it is bad policy, i have never seen a decent argument that it is unconstitutional

  • GMT II||

    You are confusing activity and impact. The Commerce Clause was written to regulate economic activity. Not doing something, may have an economic impact, but it was never to be considered economic activity. If you knew how dumb I am, being an under educated RedNeck, you would feel great sadness with your question. Now to go find my spell clucker!

    It was explained to me this way. Actual intercourse is sexual activity and masterbation is more like impact. Don't believe me? You should see the bruise on my forehead. My next economic lesson includes my sister.

  • sevo||

    I'd like to add that Olberman now gets his deserved audience: ~23K, or about the size of the crowd at a minor-league ball game:
    http://www.sfgate.com/cgi-bin/.....1HKBBF.DTL

  • Fiscal Meth||

    I like what Vinson said:

    "It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."

  • DLM||

    ...Congress can regulate purely intrastate activities if they have a "substantial effect" on interstate commerce.

    Apparently that was later expanded to include 'insubstantial' effects, too.

  • ||

    The reductio is one of the weakest arguments that can be deployed in this context.

    Congress could do "ridiculous" things if it can regulate inactivity. But it could do "ridiculous" things if it can only regulate activity with "substantial effects." And it could still do ridiculous things if it can only regulate commerce that crosses state lines.

    Any grant of power - however broad or narrow - might allow the power to be used in ridiculous ways. So a reductio is no a very good argument for narrowing a broad power. Why is Sullum acknowledging the triviality of moving from an inactivity-with-substantial-effects test to an activity-with-substantial-effects test while at the same time investing so much importance in an activity-across-state-lines test? All are equally trivial hedges against "ridiculous" uses of power.

  • ||

    So we have narrowed the scope of what can be affected by ridiculous and that's bad? Or you just didn't get any last night so you felt like sniping at someone?

  • ||

    The point is it doesn't really narrow the scope. What if no one was allowed to travel cross state lines w/o health insurance? Just as broad, just as "ridiculous" as the individual mandate, but Lochner-era approved. So what?

  • ||

    So you're saying that the only issue is what actually is "regulate"?

    I would still disagree then, as it reduces the arguments that need to be made, or in other words we have actually gotten closer to the original understanding.

  • ||

    If we can return to the actual article, Mr. Sullum seems perterbed that Judge Vinson limited the basis of his ruling to the "inactivity" argument. But in fairness, that's the best he could have done, and in my judgment (having actually read the opinion) he did an excellent job with it. As a District Court judge he is bound by the Supreme Court's prior decisions (stare decisis, and has been mentioned above in this thread). So what he did was find a way to distinguish these facts from the previous cases so as to permit him to overturn the law. And in the process he wrote a short treatise on the Commerce Clause and how it has been so badly distorted (nay, perverted) since 1937. The Supreme Court will be hard pressed to ignore his scholarship when this case eventually reaches it. This is a clarion call for a re-visitation of the issue, and it's hard to imagine how it could have been done any better. My hat is off to Judge Vinson!

  • ||

    Sorry,that should have been "perturbed".

  • Realist||

    So how will you get Congress to slit it's own throat???

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    Wickard v. Filburn delenda est.

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