Constitutional Law

The Commerce Clause and the Health Insurance Mandate

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Over at the Tenth Amendment Center, University of Montana law professor Rob Natelson argues that esteemed constitutional scholar Akhil Reed Amar is wrong about the constitutionality of the health care mandate:

Amar: "Under the interstate commerce clause of Article I, activities whose effects are confined within a given state are to be regulated by that state government, or simply left unregulated. But the federal government is specifically empowered to address matters that have significant spillover effects across state lines or international borders."

Natelson: The interstate commerce clause gave Congress power to regulate interstate commerce — not any "matters that have significant spillover effects across state lines." The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the federal government regulate any activity with interstate spillover. Instead, the delegates limited Congress to enumerated powers, such as the power over interstate commerce. The Bill of Rights constricted those powers further.

In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states. They also included a qualified state power to deal with spillover effects by interstate compact. The Founders knew that through "sophistry" (their word) one can always claim a spillover effect, so giving the federal government power over anything with significant spillover effects would result in no real constraints on the federal government at all.

Amar: "[T]he founders authorized Congress to act even in situations that did not involve explicit markets, so long as the activities truly crossed state lines or national borders."

Natelson: Under the Commerce Clause, Congress received the power to regulate "Commerce." Several scholars, including I, have published research showing what the Constitution meant by this word. Based on over two thousand uses of "commerce" in Founding-Era records, we know that the word meant mercantile trade and certain closely-related activities, such as marine insurance and navigation, traditionally governed by the rules pertaining to merchants. "Commerce" did not include other economic or non-economic activities.

Read the whole thing here. I discuss the constitutionality of the mandate under the Commerce Clause here.

[Via Dave Kopel]

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  1. Amar: The Constitution means what I think it should mean.

  2. “a constitutional scholar I very much admire”

    Natelson needs to explain that. I saw nothing admirable in Amar’s writing.

    1. Have you read any of Amar’s books? They are very highly regarded. It’s almost shocking to see such a warped argument, in light of his past writings.

      1. The linked article is my entire Amar readings. And only the stuff Natelson pulled out, which I assume is the worst bits. But still, those were so bad that I cant imagine any good making up for it.

  3. Amar is pretty clearly descriptively correct in the post-Wickard world we live in.

    Natelson is pretty clearly correct in a prescriptive sense.

    1. If Amar was simply claiming that “court precedent” authorized this, then yes, he’d be a good student of what’s happend since Wickard.

      But the entire article is based on the idea that the founders themselves were authorizing this sort of power.

      Natelson referred to this as “little short of absurd.” I think he was quite kind in that assessment.

  4. “…to regulate Commerce…among the several States”

    Maybe this is just my simplistic interpretation of the Constitution, but wouldn’t “Interstate Commerce” only apply to the actual state governments and not to the citizens of the state?

  5. I thought ‘interstate commerce’ was distributed from dispensaries in California?

  6. 1: freeforall232 – no. It would take too long here, but you have to understand what was going on and why the convention decided to replace the Articles of the Confederation and why there was such an emphasis on commerce among the states. But it’s not just regulation of the relationships between the state governments – it was, indeed, aimed at “regulating” commerce. And this leads to the second point:

    2. The meaning of “regulate”. The word did not have the meaning that it has today. Look at the 2nd Amendment’s “well-regulated” militia. At the time of the writing of the Constitution, the verb “regulate” meant “to make regular” – not “to comprehensively control via a detailed set of rules”. “Regulated” meant functioning regularly – i.e., in an orderly manner. It was about smooth running; regularity – not command and control.

    The fed gov was empowered to assure the free and regular flow of commerce among the states – by removing state-specific protectionist barriers and obstacles that were impeding and hindering commerce among the states. This would “make regular” the interstate commerce.

    But nowhere does the Constitution empower Congress to regulate intrastate activities that might have some kind of effect on interstate commerce – just the commerce itself. All that nonsense has developed from the last 70+ years of Supreme Court decisions, expanding the scope of Congress’s authority under the Commerce Clause, combined with the Necessary and Proper Clause.

    1. Hi A Different Bill. Thanks for the response!

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  8. We already have a mandated insurance. Medicare Part D.

    If Congress can mandate, by law, a prescription drug plan. Why not health a insurance plan?

    If people are serious about fighting the mandate, it needs to start with challanging the Medicare Part D mandate.

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