The Amazing Elastic Commerce Clause

The individual health insurance mandate tugs on an overstretched federal power.


In 2005 the Supreme Court said the federal government's power to "regulate commerce…among the several states" extends to the tiniest speck of marijuana wherever it may be found, even in the home of a patient who grows it for her own medical use in compliance with state law. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas warned in his dissent, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

The Obama administration, which was in court this week defending the new federal requirement that every American obtain government-designed health insurance, seems determined to prove Thomas right. But despite seven decades of stretching by a Supreme Court eager to accommodate every congressional whim, the Amazing Elastic Commerce Clause is still not expansive enough to cover the unprecedented command that people purchase a product from a private company in exchange for the privilege of existing.

"Never before has the Commerce Clause…been extended this far," noted U.S. District Judge Henry Hudson when he declined to dismiss the case he heard this week, in which Virginia is challenging the insurance mandate. Last week, allowing a similar lawsuit by Florida, U.S. District Judge Roger Vinson agreed that the Commerce Clause has "never been applied in such a manner before."

That's saying a lot, because the Commerce Clause has been used to justify some audacious assertions of federal power, under the theory that it covers not just interstate commerce but "activities that substantially affect interstate commerce." In 1942 the Supreme Court said a farmer could be penalized for violating federal crop regulations by growing wheat for his own consumption because he thereby reduced demand in the interstate wheat market. The 2005 medical marijuana case extended this reasoning to a federally proscribed commodity grown by people who were not even farmers. In 1964 the Court held that businesses made themselves subject to a federal ban on racial discrimination by purchasing supplies that originated in other states.

But as Judge Vinson noted, all of these cases at least "involved activities in which the plaintiffs had chosen to engage." By contrast, the insurance mandate is "based solely on citizenship and on being alive."

U.S. District Judge George Caram Steeh, who this month dismissed the Michigan-based Thomas More Law Center's challenge to the insurance requirement, disagrees. Conceding that every case in which the Supreme Court has upheld a law under the Commerce Clause has involved "some sort of activity" and "an economic or commercial component," Steeh tried hard to find those elements in a law that punishes people for something that is neither economic nor an activity.

This was the best he could do: "Far from 'inactivity,' by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance.…These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance."

Although Steeh claimed "the health care market is unlike other markets" because people "cannot opt out," his logic is easily adaptable. People who abstain from purchasing a car are making an economic decision to use other modes of transportation, and that choice has an impact on the U.S. automobile industry, which the federal government is committed to saving. People who do not eat vegetables are making an economic decision to consume other foods, and that choice affects the market for health care services as well as interstate commerce in broccoli. As Judge Hudson observed on Monday, the possibilities are "boundless."

Worse, Steeh's emphasis on "cost-shifting" by people who make poor economic decisions suggests a federal government with the authority to override myriad heretofore private choices, including decisions about education, employment, housing, savings, investment, and purchases of all kinds. Try opting out of that.

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

© Copyright 2010 by Creators Syndicate Inc.

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  1. Good morning reason.

  2. Mornin’, Suki.

    After the Controlled Substances Act, the War Powers Resolution, etc. etc., 2005 was a little late for Thomas to figure out that GovCo doesn’t do the whole enumerated powers thing anymore.

    1. You’re right, it was far too late for Thomas to figure that out.

      Does that mean the people who delayed Thomas’ congressional approval are to blame? (Can we? Can we? CAN WE?)

  3. If my going on Atkins impacts my wheat purchases just like growing my own, can the govt mandate that too?

    1. Of course they can. They’re the government!

  4. It’s clear that the enumerated powers are now just a historical artifact, and that precedent and the Bill of Rights are the only remaining limits to what is allowed (the Bill of Rights being under constant attack, of course).

    Even if the mandate is overturned this time, someday when conditions are more favorable something similar will be passed and deemed constitutional – and that will push the envelope a bit further, become the new limit, and there will be no going back.

    1. The 10th Am has been irrelevant since the 14th.

      1. Where did the 14th grant additional federal power outside of enforcing the provisions of the 14th?

  5. The line of reasoning that the federal government can regulate every decision that has possibly the slightest impact on the economy eviscerates the right to privacy that supposedly undergirds such social left things as abortion rights. A political movement that is truly interested in keeping government out of the bedroom as it were would not seriously present such a rationalization for their policies.

    1. Is there any right it doesn’t eviscerate?

  6. The unborn baby you’re about to abort will most likely buy healthcare or wheat in his or her lifetime.

    1. Dead babies are gluten free.

      1. Depends. If the baby was breastfed and mom didn’t maintain a gluten-free diet, then your dead baby isn’t going to be gluten-free either; same deal if the baby was formula fed. Otherwise, bon appetit!

      2. Dead babies can’t take gluten off the shelf.

    2. However, by choosing not to abort, you’ve affected the economy of abortion clinics! People who work there may not be able to buy wheat!

      1. by choosing to abort, your endangering social security…because the kid will be a contributor.
        BUT, the gubermint sends you a statement of your own account!!!
        Face it, when the court said:
        In 1942 the Supreme Court said a farmer could be penalized for violating federal crop regulations by growing wheat for his own consumption because he thereby reduced demand in the interstate wheat market.

        All logic and reality about the gubermint being limited was lost.

  7. I can only hope that Alito’s complaints about being expected to be a potted plant will be in the front of his mind when he votes on the Constituionality of the mandate.

    It’s his job to protect us from an oppressive government dictatorship. It’s their duty to strike this damned law down.

    Will they? Remains to be seen. It can go either way.

  8. Turn over a grain of sand on the beach…

  9. It seems the government’s power to “regulate commerce … among the several states” doesn’t particularly involve regulating *itself*. Perhaps if the clause were to be interpreted as a requirement rather than an option We The People? might be able to lob the ol’ logic bomb at congress.

    1. I know I’m not the only one who understands that the meaning of “regulate” has changed since the drafting of the Constitution, and that it used to mean “to make regular (i.e., smooth-running and not blocked by interstate tariffs)”. (Sort of like a legal dose of psyllium husk.)

      I’m really not, right?

      Anyhow, that being said, would it change anything if a proper understanding of the *meaning* (not the intent) of the law were to be restored?

      I guess the Gubment would then argue that not buying wheat makes the trade amongs the states less smooth, or some shit like that.

      1. No, you’re not the only one.

        The Federalist Papers (No. 22 & No. 42) make it perfectly clear that the Commerce Clause had absolutely nothing to do with with imposing government regulations and everything to do with preventing state from imposing duties, tariffs, and other protectionist measures against one another.

  10. I don’t see how the whole “inaction/action” thing makes a relevant distinction. Are we supposed to think the power “to regulate” can prevent people from doing things, but not require them to do things? In every area of life rules and regulations contain proscriptions and prescriptions.

    Of course because Congress has been granted a power doesn’t mean they have to use it. The branches are all supposed to have some responsibility and Congress and the Executive should not use powers they may have for such stupid and immoral purposes as to force all Americans to do business with insurance companies.

    1. MNG, let me put it in terms you can understand.

      Inaction: I will not allow you to suck my lollipop.

      Action: I will force you to suck my lollipop.

      1. Yeah, yeah jtuf…My point is that in terms of the power “to regulate” proscriptions and prescriptions usually are thought to be included in the meaning.

        1. MNG, can you give an example of a prescription we already accept that’s not based on some other activity? I mean, sure, we force businesses to do things, but that’s based on the business being in business, i.e., already doing something, which places an obligation on them to do something else. I don’t see an equivalent in the health care mandate. So again, can you give an example of a prescription that is not tied to an activity already being engated in?

    2. Even laying aside the debate as to what “regulate” was intended to mean, it would seem to imply governing an existing activity. This requirement creates a new commercial activity through force, which would seem to conflict with what would be meant by the current usage of regulate. If I state that I want to regulate playing of baseball, it would not generally be understood to mean that I would by so doing be compelling you to start playing baseball if you were not a player beforehand. Semantics aside, this bill, if put into place as precedent by the courts, gives the government the authority to do anything at all, which is clearly so far in conflict with what was intended by the founders that we might as well scrap the constitution and start referring to the President as the dear leader.

      1. Contrarian P|10.20.10 @ 10:47AM|#
        Semantics aside, this bill, if put into place as precedent by the courts, gives the government the authority to do anything at all, which is clearly so far in conflict with what was intended by the founders that we might as well scrap the constitution and start referring to the President as the dear leader.

        I find “Mein Furher” a bit more appropriate in this instance.

    3. I would be curious what your view is with regard to:
      In 1942 the Supreme Court said a farmer could be penalized for violating federal crop regulations by growing wheat for his own consumption because he thereby reduced demand in the interstate wheat market.

      Do you think that is reasonable?
      Logical? Just?
      Of course, nowadays, maybe you could contest it by saying your baby needs organic wheat. Or maybe locally grown. Or not genetically altered. But those options cost the money of hring a lawyer.

  11. “People who do not eat vegetables are making an economic decision to consume other foods, and that choice affects the market for health care services as well as interstate commerce in broccoli.”

    I realize this will be small solace to many libertarians, but I think the case law would allow the government to require you to buy brocoli but could not make you eat it…

    1. That’s just a matter of current interpretation. Today they make you buy it; tomorrow they make you eat it.

    2. What case law? Isn’t federal jurisdiction over public health -ie. the Public Health Service Act – derived from the commerce clause? It’s clear the federal government can make laws about required vaccinations. In any event, I think this most recent comment contradicts the one just up-thread. Now eat your broccoli!

    3. You will eat your federally mandated requirement of broccoli, young man, or you will go to bed without your federally permitted portion of dessert-flavored nutri-gruel!

    4. Why?

      Government can require vaccinations, because it affects other people and the externalities.

      If Obamacare is justified on the basis of the externalities and the costs imposed on the health care system through the Commerce Clause, then surely it can force people to eat healthfully.

      1. If not actually eating that broccoli now is merely deferring your health care expenses until later, well, apparently you can be forced to eat it.

        1. Broccoli makes me fart when I eat it.

          Does nobody care about the clean air act? Does nobody care that my methane spurts are contributing to the accumulation of green house gases and therby raising the global temperature? For Dog’s sake, won’t somebody think of the polar bears?

          1. How about all the sperm piling up in my testicals because of the lack of gubermint provided whores for the destitute (or unattractive)? Undoubtedly, this is causing great harm by atrophication of my seminiferous tubules.

            1. I’ve been saying it’s only a matter of time before the unattractive are guaranteed sex with hot bitches. I’ll think they’ll justify by ensuring the most unattractive people are part of the government. Oh wait…they already are.


    5. The government can force you to adopt whatever health fad is en vogue, because your lifestyle choices affect your future consumption of health care.

      At least, that’s the road the left wants to go down.

  12. Thomas fought to legalize marijuana. Obama runs the DEA that’s cracking down on marijuana users. Despite these differences, most Liberals back Obama over Thomas, because Obama forcibly takes the fruits of other people’s labor and gives it to them.

    1. Thomas did not fight to “legalize marijuana.” He argued that the federal government could not prohibit non-interstate production and use of the drug. That’s a big difference.

      1. True enough, Justice Thomas is a committed formalist for whom means are almost always more important than ends.

        Most people think that the ends justify the means. (Arguably you’re doing so here, MNG, but I may be misinterpreting you.)

        1. Most people think that the ends justify the means.

          This is a huge Grey area.

          Under your assumption the fact that I think Lincoln was justified in suspending habeas corpus during a time of war to end Slavery means I think in general the ends justify the means. This is not true. The ends have to be pretty damn important to justify the means.

          One can set the the standard for the ends pretty damn high (ending perhaps one of the worse atrocities in the history of the world) and set the means fairly low. (ending limited protections against imprisonment during a time of War for the duration of that war at a time when war was defined with an ending and insured to have a victor and a loser)

          Under your “most” definition you would say i was one of those most. Yet in real world terms i would be light years from MNG’s willy nilly “state can do what it wants when it wants” socialist ends justify the means standards.

    2. Yes, or how Clinton instituted don’t ask/don’t tell, and signed the defense of marriage act. And how a judge overturned don’t ask don’t tell, but the Obama administration is fighting that ruling. But, the conventional wisdom is, it’s the Republicans who are fighting against gay rights. I guess it’s worse to be loud and obnoxious about the issue (like the Repubs), than to take action against in issue (Dems.)

  13. I had one of those chairs that is pictured. I loved the thing. It was great for writing for long periods on a typewriter. After graduate school, I stupidly gave it to my sister-in-law and she threw it away.

  14. The constitution nowhere said only interstate commerce can be regulated.

    1. Does somebody have to, yet again, point out that the Constitution is a document of enumerated powers?

      1. Always and forever, until they put you in the gas chamber.

      2. “To regulate Commerce… among the several States”

        Enumerated right there.

        1. Look up the classical definitions of the words commerce and regulate, and that clause takes on a whole different, yet constrained (as intended) meaning. It basically meant that the states couldn’t add tariffs and duties onto goods from other states, and the federal government could step in to stop that which sort of enforces individual rights over the whims of tax-happy pension drunk state governments. Unfortunately, this dragon was speared long ago (partially due to the civil war) and the federal government’s need to invoke the commerce clause’s intended meaning has fallen off our radar. As a result of poor reading comprehension and power-hungry would-be despots, it has conveniently been reinterpreted. If the commerce clause should be used for anything these days, it should be used to allow the sale of health insurance across state lines (an arbitrary restriction set up to stop the flow of commerce).

          1. It is quite clear the idea that the commerce clause means only to keep commerce open and regular between the states is well understood among many persons. It was also well understood back when the Constitution was ratified, it was well understood when the 18th Amendment (i.e. Prohibition) was ratified.

            1. But alas, OM, it is not well understood now and hasn’t been for a long long time.

              1. Do you really think it’s not understood? Perhaps the liberal members of the general populace really can’t think through the implications of these types of interpretations. But their leaders certainly can. I would wager that the (at least) four U.S. Supreme Court justices who will vote to uphold Obamacare understand the historical and common sense interpretation of the Commerce Clause.

                I would also wager that they don’t really care. They’ve accepted so-called “progressivism” as the foundation of their belief system. When a little document like the Constitution or something like following logical implications stands in the way, they choose the “progressive” action over the Constitutionally-mandated or logical one. They really don’t give a shit about enumerated powers and the like. But they need to incorporate their preferences under the system of law. So they concoct the current interpretation of the Commerce Clause. Don’t think that means they don’t understand it.

                We need to stop thinking of people like Breyer, Day O’Connor, et al and their “progressive” Congressional counterparts as people attempting to respect Constitutional law. They’ve accepted different tenets than we have and are determined to impose their beliefs. That this is done under the cover of Constitutional interpretation does not make it any less true. This has been nothing less than an intentional century-long assault on personal freedoms. Let’s start treating it as such and stop diagnosing it as misunderstanding or poor interpretation.

                1. I meant hat it is not understood amongst the endless seas of public-school educated zombies who vote and will vote in the future. Regardless, as you’ve surmised, most of these said morons won’t care about the facts as long as they can just get theirs at the expense of someone else.

                  Now the Justices on the other hand, are just part of the machine, and even if they didn’t understand it like the idiotic public, they would never turn back the tide of “progressivism” long favored by those in their seats. Unfortunately, they are just part, if not key culprits, of the problem.

                  Regardless, WE FUCKED (grammatical errors are intentional this message brought to you by Carl’s Jr. Try Carl’s new assblaster burger today! It’s assblasttastic!).

                2. Let’s start treating it as such and stop diagnosing it as misunderstanding or poor interpretation.


              2. You’re right, it’s not well understood. Scary thing in, though, it’s understood perfectly by Congress. They simply see it as an unwarranted impediment to their authority, so with the help of a docile Supreme Court, they simply pretend it doesn’t exist (or that its meaning in something vastly broader than what you and I know was plainly intended).

  15. My point is that in terms of the power “to regulate” proscriptions and prescriptions usually are thought to be included in the meaning.

    The prescriptions are generally in the form of “IF you choose to do X (in interstate commerce), then you must also do Y.” Once you do away with the conditional nature of the prescriptions, you have amended the commerce clause into a grant of plenary economic authority, which is to say, plenary authority.

  16. I think the case law would allow the government to require you to buy brocoli but could not make you eat it

    If ObamaCare is upheld, then eating broccoli will have an effect on your future consumption of health care, and will be a permissible mandate.

    1. Smoking will have an effect as well. Or drinking. Or eating “too” much. Or a high pulse rate (ostensibly due to lack of exercise).
      Can gubermint not decide in the allocation of resources that it will choose to spend scarce resources on smokers…thereby decreasing resources spend on others (nonsmokers)?
      When individuals make decisions, they can weigh what is important to themselves. They can weigh resources against wants.
      Now all of these decisions will be made by lobbyists, TV commercials, and ranting and railing. If people don’t like politics now, which really decide relativy minor questions, what happens when your 65 and the gubermint has said no kidney transplant for people over 65 …and you need a kidney?
      Now multiple that by a billion choices, and you have my rationale for limiting gubermint involvement.

      1. +1.

        I tend to think of it thusly:
        As a citizen, what the government spends money on is my business. To the extent that the government spends money on you, then you and your actions are my business. The reverse also applies (I may be your business as well).

        As entitlements grow everyone is allowed, even require, everyone to stick their nose into everyone else’s business. What a wonderful world.

  17. Thomas did not fight to “legalize marijuana.” He argued that the federal government could not prohibit non-interstate production and use of the drug. That’s a big difference.

    Not as big as you think. Within the context of the case, that position was the equivalent of fighting to legalize marijuana. What’s the difference between saying that the federal government doesn’t have the power to criminalize intra-state marijuana use, and saying that intra-state marijuana use should be legalized at the federal level?

    1. What’s the difference? The difference is that the former is keeping the Feds out of local politics, and the latter is allowing the Feds to directly regulate. The end result wouldn’t even be the same; the former would allow states their own choice, and the latter would preclude that choice.
      It is indeed a big difference.

  18. The constitution nowhere said only interstate commerce can be regulated.

    Allow me to direct your attention to the 10th Amendment:

    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.

    1. “To regulate Commerce… among the several States”

      Enumerated right there.

      1. And also with foreign countries and the Indian tribes.

        Why doesn’t Congress then regulate ALL activity inside the Indian territories if, as some have argued, the Commerce clause allows Congress to regulate ANYTHING inside the States?

        1. IMO regulating commerce within the states is a gross interpretation and it is equally absurd if you were to say that congress has the power to regulate commerce within foreign nations.

        2. Why doesn’t Congress then regulate ALL activity inside the Indian territories

          Politics. The tribes have pretty good PR and know where to hire good lawyers.

      2. Commerce Clause:
        “Congress has the power to…regulate commerce with foreign nations, among the several states, and with the Indian tribes.”

        Liberal interpretation of the CC:
        “Congress has the power to…regulate commerce with foreign nations, among within the several states, and with the Indian tribes.”

        Two different prepositions with distinct meanings.

        1. Progressive interpretation of the CC:
          “Congress has the power.”

      3. scineram,

        The full text is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Imagine if we were to apply the logic of your interpretation to the whole clause. The U.S. Congress has the right to require that all citizens of foreign nations purchase health care? Does any sane person actually think this is an even remotely acceptable interpretation?

        Stop using ellipses. It allows the intellectually dishonest to claim an interpretation which isn’t remotely tenable when looking at the entire passage.

        1. It is not saying among all nations, only with foreign nations. If they wanted to say between a state and another state they would have, as they did with the judiciary.

          1. “….among the several states….” means between the several states. It does not mean within the several states.

            The only reason people feel the need to interpret what the constitution says is that they feel the need to change the original meaning into what they think it ought to mean. It’s right there in plain English.

            1. Another reason may be that they have a reading comprehension problem. The problem is that we have an abundance of legislators and judges with both.

          2. It’s a matter of semantics. Between is most appropriately used in reference to a relationship between only two things, or more than two things if each thing is specifically named (e.g. To regulate Commerce with foreign Nations; and between Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island; and with the Indian Tribes.)

            Among is appropriate when expressing a distributed relationship between multiple things (e.g. …among the several States…).

      4. Yes – regulate commerce among the several states – NOT commerce WITHIN the several states.

        So if doesn’t involve goods being shipped across state lines wherein title to the property transfers from seller to buyer as part of the transaction, it doesn’t qualify as “commerce among the several states” and is therefore beyond the power of Congress to regulate.

  19. Re: MNG (from a previous post, but relevant here),

    OM: “It is more reasonable to read the interstate commerce clause as it is clearly written (in plain English): To make commerce regular between the states.”

    But that is not how it is plainly written. It is plainly written to grant to Congress the power “to regulate” that area. And regulation was understood at the time to include “making rules about.”

    Perhaps their GOAL was to make commerce regular, but that is not what they SAID.

    That is exactly what they said, MNG, otherwise they would not have bothered with enumerating the OTHER powers; what would have been the point?

    Another thing you’re missing is this: COMMERCE back then only meant “trade,” “exchange,” and not “everything that strikes my fancy,” which is the “modern” (i.e. sleazy and sneaky) interpretation.

    Last, as you seem to miss it, the clause gives Congress the power to regulate commerce, as in ALL TRADE (as in “EVERYTHING LUMPED TOGETHER”), and not the power to regulate a specific product or activity. This was well understood even at the time of Prohibition when the States ratified a God-damn FUCKING AMENDMENT to the Constitution to (suprise!) regulate alcohol commerce. If back then Congress understood it, why is the clause supposed to mean a TOTALLY DIFFERENT THING *NOW*?

    1. Duh.. it’s a living Constitution. Get with the times, old man!

      1. Duh, liberal hack off, it’s a living Constitution, that’s why there is a process to amend it!

    2. Prohibition is always a good mine for arguments to attack statist bullshit. Thanks for reminding me Aged Mexican.

      When it comes to amendments, there are good reasons we haven’t had many despite the disproportionate massive exponential federal buttfucking this country has received :
      1) It’s Hard and most people who want to impose their will on others are lazy, lying cunts,
      2) It emphasizes that force will now be behind something which it was not behind before more so than seemingly innocuous executive orders, congressional resolutions, and judicial constitutional reinterpretations, and
      3) The act of ratifying a new amendment for something, in essence, reveals that every massive intrusive policy not explicitly laid out in the constitution is a bunch of imposed bullshit that shouldn’t have made it past the capitol building’s steps. In other words, a significant portion of the central government is illegitimate, and an amendment magnifies that fact.

      1. And how.

  20. When I exhale, I am emitting carbon dioxide, which affects the market for plant fertilizer. (It’s also a greenhouse gas.)

    Some of that carbon dioxide impacts the growth of cannabis plants.

    Therefore, my right to exhale is now subject to the whims of the EPA and the Interstate Commerce Clause.

    Freedom? Don’t hold your breath.

    1. Sounds like you need to buy some carbon credits from Al Bore!

  21. That’s saying a lot, because the Commerce Clause has been used to justify some audacious assertions of federal power, under the theory that it covers not just interstate commerce but “activities that substantially affect interstate commerce.”

    Under this argument, the Fed Gov could make people have babies as they also affect interstate commerce…

    This is a totally modern and sneaky “interpretation” of this power, as even the first prohibitions to marijuana made use of tax laws (by taxing it to absurd levels) and not “interstate commerce.”

  22. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.

    Federalist 42

    Now kindly go piss up a rope.

  23. Well, you can hardly blame them for having the same view of the Commerce Clause as TrickyVic does of the First Amendment. It doesn’t matter what’s in the actual text, the current line of legal analysis trumps all concerns.

    Therefore, since Wickard v. Filburn was decided that way, it’s stupid and irresponsible for libertarians to argue that the Constitution doesn’t actually say that. An argument that TrickyVic could agree with.

  24. Its obvious that we need a new constitution. One that restricts all governments within the U.S. from doing pretty much anything.

    1. 10 bucks they figure out a way to get around any limitations like the assholes before them.

      1. Yes. They will say it is a living document!

        1. This is the only way out of our current mess. The question is – how do we adopt a new Constitution? The only way is through the same process as led to creation of the first one. “It is their right, it is their duty, to throw off such Government”. The only answer.

    2. Your theory might make for an interesting newsletter that would garner many subscribers…

      But with a system of judicial interpretation that allows logical constructs defining up as down and black as white* to serve as binding precedent, I think you’ll find the exercise of reformulating the constitution fruitless and frustrating.

      * or non-commerce as commerce

  25. This might cost the left abortion. One could easily make the argument that aborting fetuses affects the future economic state of the nation. Governments have a vested interested in banning the procedure since allowing it would mean a diminished future supply of taxpayers, soldiers, fire fighters, accountants, etc.

    1. Or the opposite. This line of reasoning opens the door to crazy, over-the-top statism like China’s “one child” policy.

      These “slippery slope” style arguments usually sound completely conspiracy-theory nutty. But in this case we are at the bottom of the slope, having just watched our rights slide away down the slope. There’s no more slope to slip down once the government has granted itself this much power over the citizenry. There is literally no construct of government power that you couldn’t justify by this reasoning.

      Just for fun, let’s try. How about chewing your toenails? Could the Feds make this a crime under this reasoning? Well, how about this: chewing toenails can transmit disease and shift healthcare costs to others. Wow, I didn’t even have to change up the verbiage from the healthcare cases.

      So you are a raving progressive and don’t have a problem with this? OK, try this on: Anal sex is much more likely to transmit disease… therefore engaging in this behavior is a deferred economic decision to purchase healthcare at a later date. So we’ll have to ban homosexuality. Nice job there… you just keep on supporting your guy because he’s wearing the team-blue jersey.

      1. With all bad policies in America, both sides will eventually get a chance wield the sword to their benefit.

        The problem with this line of reasoning is that no judgment is made on whether the effects are positive or negative. From the government’s perspective, having children means overpopulation (bad), taking up space in schools (bad), urban sprawl (bad); not having children means fewer soldiers (bad), fewer taxpayers (bad), and, if they’re of a certain demographic, fewer voters (terrible).

    2. That assumes the left is bound by logic. It is not. It is bound only by sympathy toward groups that somehow claim to be victims. Women have traditionally seemed oppressed so they must be given the right to kill unborn babies. Blacks were enslaved seven generations ago, so they must be given preferential treatment–maybe even reparations. The uninsured are oppressed because they are too stupid or poor to buy health insurance, so we will make them not only buy health insurance, we will make them buy the health insurance we think they ought to have–and then we will make them eat their veggies, exercise, stop smoking, and have monthly colonics or whatever else seems to be a good idea.

    3. I’ve also thought that increasing the government’s control of health care would bite them in the ass this way too, especially if they get a so-called single payer system like they long for. What’s to say that a future GOP government won’t just zero out the budget for abortions?

      1. Well, one could argue that choosing not to vote Democrat affects interstate commerce. So everyone is required to vote Democrat. No future GOP government. Problem solved!

  26. MNG,

    Commerce in its original meaning at the time of ratification of the Constitution was Trade.

    In today’s language it would would be written as “Trade across state lines”

    The language in the constitution does not say “regulate anything effecting trade across state lines” it says “regulate trade across state lines”

    It is not an argument of interpretation. You are arguing that that the constitution can be changed on the whims of a group of black robed rulers. By supporting this sort of action you are by definition not a liberal. Liberals believe in the rule of law. You believe in state power to do what it wants when it suits you and your ideology. Liberals also believe in due process. The unconstitutional changing of the constitution through interpretation is not due process. If you want to change the meaning of the constitution then you go through the process to change the text of the constitution. Again you are not a liberal.

  27. “Far from ‘inactivity,’ by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later”

    That seems dubious. How do you know they were going to buy it later? Maybe they’re from a religious sect (Christian Scientists? Quakers?) who don’t believe in modern medicine. Maybe they were planning to use it, but they die in a skydiving accident first.

    The argument is entirely predicated on an unfounded assumption of what someone will do in the future.

    1. Didn’t you hear? All members of Congress are now clairvoyant! There was an impirial decree [read: Executive Order].

  28. [I just can’t keep up– I’m always Tail-End Charley, ending the thread. Maybe I think too much before posting. 😉 ]

    “Commerce”. “Regulate”. It appears that all we have to do is change the meanings of the words used in laws and voila!– we have changed the law! This is absurd. I think we have two choices: 1) Understand the meanings of the words used in the each part of the Constitution at the time when that part was written, to get the best understanding of the intent of that part, and then implement that intent; or 2) Decide to change the intent of the Constitution (or part of it) and amend as necessary, hopefully including a thorough glossary of terms from now on.

  29. “who ultimately pay for the care provided to those who go without insurance.”

    This argument is totally specious since a person could choose to die rather than seek free medical care. If they wandered off into the wilderness the public wouldn’t even have to pay for a funeral.

    1. Which would affect the funeral services market. So no more wandering off into the wilderness.

    2. But the public would have to pay for all the search and rescue people who are sent to look for your remains, and the grief counselors for the person who stumbles upon your corpse, and the soil impact study to determine if your decomposing body contaminated any ground water or disturbed an orange spotted salamander habitat…

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