Does the Commerce Clause Impose Any Limits on Congressional Power?


Tomorrow in Atlanta the 11th Circuit Court of Appeals will hear oral arguments in one of the legal challenges brought against the Patient Protection and Affordable Care Act's requirement that all Americans purchase or secure health insurance. At The Washington Examiner, Georgetown law professor Randy Barnett—one of the intellectual architects of the case against ObamaCare—observes that the government has now trotted out three different arguments in defense of the individual mandate, none of which actually imposes any real limit on congressional power:

In the 4th Circuit in Richmond, the government contended that Congress was limited to imposing mandates with regard to issues of truly national, as opposed to local, concern.

While this distinction is found in a 1942 case, it has never been adopted as a rule of law to be enforced by the courts. Nor will it be. Courts are never going to assess whether a problem is "truly" national or "truly" local, because they are incapable of drawing any such line in a principled fashion.

Instead they will defer, as they typically do, to the assessment of Congress that a particular problem is of national concern.

In the 6th Circuit last week in Cincinnati, the government offered a different limit: As the Supreme Court held in 1995, Congress may not regulate wholly intrastate noneconomic activity.

But this principle does not provide any meaningful limits on the use of economic mandates. If an economic mandate is allowed in this case because Congress has a "rational basis" for believing it is essential to its economic regulatory scheme, then mandates will forever be available whenever Congress enacts a scheme of economic regulation under its commerce power.

Read the whole thing here. In the video below, explains the Commerce Clause debate at the heart of the case.

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  1. God, I can’t stand that guy in the video. He advocates total government, and does it with a punchable face, a punchable voice, and a quiet, sneering condescension that makes me sick.

    1. He reminds me of a cross between Academician Prokhor Zakharov and Commissioner Pravin Lal. The 2 factions I liked to steamroll right away with the Morganites.

      1. CEO Morgan 4 Life!

    2. that’s a lot of punching!

      1. Please help me with the German.

        1. gladly.

        2. According to Google translate “punchable face” = “stanzbarer Gesicht”, but that’s not what I am looking for.

          Then I just did a google search for “punchable face german”, and what do you know, the first result was to a Reason comment thread about Ezra Klein! So:

          punchable face = Backpfeifengesicht

          1. is the sum total of all human knowledge.

          2. I like the way this was translated in Car and Driver. “A face that cries out for a fist”

    3. That guy is reknowned constitutional law professor Erwin Chemerinsky. We watched a videotaped lecture he presented for bar review. I will say he was good at that. But I completely, utterly and vehemently disagree with his characterization of Congress’s authority under the Commerce Clause.

      I recall also his reaction to D.C. v. Heller and MacDonald v. Chicago – typical GFW, anti-liberty bullshit. He claimed Scalia et al engaged in “judicial activism” because they ruled the Second Amendment actually meant “the right of the people,” not some bogus “collective right” of states to form militias.

      So yeah, no love lost here for Chemerinsky.

  2. Who has the burden of proof?
    Those who are challenging the law, or those who are defending it?

    1. The challenger.

    2. It’s a general rule that legislative enactments are to be presumed constitutional.

      1. I see. And the role of the judicial branch is not to judge the law against the Constitution, but to defend it against those who judge it against the Constitution.

        So much for rule of law and separation of powers.

      2. Yes, although there’s also the general rule of deference to executive branch interpretations of a legislative enactment as well.

  3. Does the Commerce Clause [as currently interpreted] Impose Any Limits on Congressional Power?

    Short answer…no.

  4. Does the Commerce Clause Impose Any Limits on Congressional Power?

    Apparently not.

    1. It’s fucking ridiculous that we’re even having this discussion. The Commerce Clause was obviously not intended to be a grant of general police power, nor were interpretations expanding it to this point at all consistent with the Constitution.

      1. Sorry, ProL, it’s a LIVING document and it needs to feed.

        1. Oohhhh, so it’s not “wiping your ass with the constitution”, it’s “nourishing with pre-digested material”, NOW I GET IT!

        2. Living? More like undead at this point.

        3. Dyin’ ain’t much of a livin’.

      2. We had to ratify it to find out what was in it.

      3. As far as pipe dreams go, the constitution has been pretty effective. In practice though, state power is limited not by documents, but by the instantaneous collective will of the people. That is, what exists is what they allow to exist — your savior will not be the constitution, but evolution.

        1. I think you left an “r” off that last word.

  5. I think asking whether the ICC “imposes” any “limits” on power is a meaningless question.

    The ICC is a GRANT of power to the Congress, so it cannot “impose limits” on Congress.

    The question has always been what is the limit of the ICC power. Surely, it is something less than the grotesque, distended tumor that it has grown into.

    1. The better question would be: are there any limits to the power granted by the Commerce Clause?

      1. Try: Does the ICC grant unlimited power to Congress?

  6. Incidentally, Rep. Mica barely got an amendment passed to the TSA budget that decreases money for TSA and forces TSA to hire private screeners.

    1. Super. Now the gloved fingers up American buttholes will be contracted out rather than federal employees.

      1. Or they will just save money by reusing the gloves.

      2. +1

        Why anyone thinks this is better is beyond me, at least federal employees actions are more likely to be bound by law and constitution.

        1. Why anyone thinks this is better is beyond me, at least federal employees actions are more likely to be bound by law and constitution.

          Because it moves jurisdiction from Homeland Security to Transportation. Transportation is more likely to care about making it easier for people to fly– which is exactly what the people who favor keeping it in Homeland Security are worried about, and exactly the arguments that lead to the TSA’s creation in the first place.

          It’s the same reason that it was a big deal when jurisdiction involving exporting encryption in general was switched from Defense to Commerce.

          1. I’m pretty sure the creation of the TSA wasn’t to make flying easier.

        2. Federal employees actions are more likely to have immunity, which is hardly being “bound by law” in any case.

          But please, continue to advocate having TSA run by Homeland Security.

        3. Do the airports get to choose the contractor, or the feds? I can see airport management being more responsive to passenger complaints than Dept. of Vaterland Security (as much of a pain as it is, you choose an airport more easily than you can choose a national government), and it’s actually probably easier to terminate a screening contract than to can a union employee.

          I guess the other relevant question is how much TSA gets to micromanage the procedures of its private sector competitors, since that could easily eliminate any gains for passengers, especially if they add requirements that are more onerous that what they require of their own personnel (“contractors must subject all passengers to a rigorous cavity search, and must hire sex offenders to screen women and underaged passengers”).

        4. And as far as being bound by the Constitution goes, the actions of the TSA (executive branch body created by Congress) get pretty wide deference by the courts, which is of course ok with MNG since interstate travel is obviously part of Interstate Commerce, therefore the TSA can do whatever it wants there, right?

        5. Yes, because if there’s one thing I’ve learned from reading Reason and Radley Balko articles it’s that there’s so much accountability out there amongst the thugs in uniform.

  7. The only way to fight against the Confab is with some Jesus aid. That’s part of this spooky law business . . . then our freedoms go Kaboom! Where is Jesus when you need him?

  8. Of course even under the current caselaw there are limits, that is what Lopez and Morrison were about.

    I’d like to know how they are going to strike this without over-ruling Raich? The whole “this was just meant to direct already existing commerce” or “this was meant to remove state impediments to trade” goes right out the window with Raich, which read “to regulate” as the power to totally prohibit certain commerce among the several states…

    1. Yes, it’s clear that when the Founders wrote the commerce clause, they were intending it to mean “everything except carrying a gun near a school and violence against women.”

      1. Who knows or cares what “the Founders” intended it to do? What matters is what they wrote. They wrote that Congress had the “power to regulate…commerce among the several states.”

        Power to regulate meant the power to make rules then as it does now, commerce meant economic activity, and among the several states meant between the states.

        If we stick with what the ratifiers intended you get a 14th Amendment that surely was never intended to combat reverse discrimination…

        1. Here’s another good example, it’s pretty clear the ratifiers of the 14th were thinking of the Freedmen, but they wrote “persons.” Scalia is correct that they never intended it to be used to strike down laws based on gender, but who cares? If women were persons at the time then they should have realized wtf they were writing. Since we can’t read their minds through a time machine we’re stuck with the text.

        2. MNG, there’s a lot wrong with your analysis, but I will pick on one point.

          The term “commerce” did not mean “economic activity” back then, and still doesn’t. Commerce means exchange of goods, a transaction.

          1. It’s worse than you think, commerce was commonly used in a broader fashion at that time to mean pretty much any ‘social intercourse.’ Hell, anyone who reads novels from that time knows that.

            Words then and now have several meanings.

            1. Yes, so we use context to pick out the appropriate meaning. What’s so hard about that?

              1. OK, so what context decides this matter?

            2. So what you’re saying then is that there really are no Constitutional bounds on anything that the TSA or its employees might do, since any sort of interaction with them is part of Interstate Commerce?

              1. Are you trying to argue that interstate flights by carriers are not interstate commerce?

                Also, the Fourth Amendment comes into play under the TSA (though it would likely also come into play with TSA oversight of contrators) because of the government involvement. The Fourth Amendment does not apply to private actors.

          2. If it means simply exchange, then what is its limit? Does it only control regulation of retail purchases? Does it control the inter-state shipping of the product to the retail store to be exchanged? The conditions of manufacturing the item to be shipped? The inter-state communications leading to the exchange?

            I’m not opposed to defining it as this per se, I just wonder if it doesn’t create as many problems as it solves.

            1. Your questions are good ones, but the set of possible questions and meanings is surely reduced by the use of the words “among the states”. That’s the part you refuse to recognize.

              1. The “among the states” part is raped by the substantial effects doctrine, not the idea that the power to regulate includes a power to mandate. I’m not defending the former doctrine.

                1. The “among the states” part is raped by the substantial effects doctrine, not the idea that the power to regulate includes a power to mandate. I’m not defending the former doctrine.

                  Can you cite a case where congress has mandated commerce to occur amoung the states? You would think that if mandates were such an ordinary commonplace thing that everyone recognizes as within the power to regulate that there would be lots of mandates all over the place, dating back way before the substantial effects doctrine.

            2. Ok, then we are not as far apart as I thought we were.

              1. Not that I agree with you about the “mandate” part.

                1. I think the mandate is immoral and stupid. It will not improve health and medical care in the US, but more importantly what is more immoral than forcing poor people to buy insurance from giant insurance companies? How any liberal can defend this is beyond me. I’ve written my representatives imploring them to act against and repeal the law in every way possible.

                  I just don’t think the text of the clause makes it unconstitutional.

                  1. Based on what you’ve said above, I don’t see how you can’t think it’s unconstitutional.

                    The clause allows Congress to make rules about commerce going on between the states. It does not empower Congress to require individuals to engage in commerce. In Raich, the only thing that gives any kind of hook – and it’s a very slender reed, as far as I’m concerned – was the fact that the woman was engaging in the activity of growing plants in her home. As you say, the substantial effects doctrine is horse shit, and if not for that, Congress would not be able to reach her activity. But at least she was engaged in some kind of ACTIVITY – she was growing plants. And not just any plants, but plants that Congress already had regulated by prohibiting them.

                    The individual mandate does not do this. It does not set forth rules applicable to an activity. It punished you for NOT engaging in an activity that Congress wants you to engage in.

                  2. We will be paying the fine because unless the government subsidizes 100% of the cost we still can’t afford it.

        3. I agree, as unfortunate as it is, the intentions of the founders is irrelevant to deciding the case of ObamaCare.

          Like it or not, the court is going to base it’s decision their decisions from prior cases. Arguing any point, other than what has been included in prior court decisions, has no meaning.

          The only intention of the founders, that has any relevancy, is their intention that the Constitution can be ratified.

          1. They could overrule Raich, they do overrule cases sometimes. It’s doubtful I know, but it is possible.

            If it’s overruled then you could go with the “the power to regulate is just the power to direct already existing commerce.” I think it would be incorrect, but it would bar a mandate.

            1. Every decision the court has ruled, has only pertained to individuals who have entered a regulated class of activities. Ruling against the individual mandate would not over rule Raich, because the decision in Raich pertained to an activity, the manufacturing of a controlled substance.

            2. If it’s overruled then you could go with the “the power to regulate is just the power to direct already existing commerce.” I think it would be incorrect, but it would bar a mandate.

              How is that not correct? There is no case that has gone so far as to support what Congress has now done. All prior SCOTUS cases involved some specific, EXISTING ACTIVITY that a person was engaged in. Growing wheat; growing marijuana; carrying a gun near a school; etc.

              There is no case that provides support for the proposition that the power to regulate ongoing individual activity that collectively has effects on interstate commerce extends so far as to also empower a rule mandating that individuals engage in an activity.

        4. and among the several states meant between the states.

          Yes, between state governments. Not sure that it meant among citizens of the several states considering the full text says “To regulate Commerce with foreign Nations, and among the several States.”

          1. You see, because it means that they can control all individual commerce choices in all of the states, then it must mean they can control all the individual commerce choices in all foreign nations as well.

            1. Well, they can’t control the tariffs of foriegn nations either, so this gets you nowhere.

          2. The big problem with this is: there was no interstate commerce between state governments and really is not today (what would that be, state license plates swaps?).

            1. Water and electricity are huge sources of commerce among the states. It’s not products that the state gov’t manufactures, but they are products in which the state gov’t is heavily involved in the purchasing and selling process with neighboring states.

              Also, fugitive slaves.

              1. Not to mention cotton, or coal, or whatever other natural or farmed resource you can think of that isn’t readily available in all states.

                1. And the point is that South Carolina shouldn’t sell cotton(assuming state owned cotton that is) to Georgia at a cheaper price(minus transportation) than they do to New York because that’s not appropriate when all of the states are working together in a unified federal republic. Of course, there’s the whole unanswered question about whether the state should own any good or natural resource just because the state happens to be where it is. And since the US is all about private property, shouldn’t it be up to the land owner about how to distribute their goods? Oh, but those evil cotton plantation owners hate the North, so they will jack up the price for those states. Except, why would a greedy person shut off potential customers? The common good, the social contract, you say? What social contract says that people should be able to live whereever the want and get the same price on natural resources that someone living close to that natural resource does? In that case, you should be able to understand that inflation can go fuck itself. My whole point being, you are right MNG, there wasn’t and there isn’t much commerce between states. So what the fuck does the Commerce Clause have to do with commerce between individuals of differing states? I’m sure you can twist the logic around to make some convoluted point. If it’s more complicated than Gov. X of State Y won’t release his militia to help Gov. Z of State Q fight off a British invasion, than you are tilting at windmills my friend.

          3. Dude, I’m on your side in general, but there is no way that it was supposed to be restricted to commerce between state govts.

            The flip side of the ICC is the dormant commerce clause, which forbids states from regulating interstate commerce…so if your interpretation is true then states could have been charging sales tax for mail-order exchanges all these years, as this doesn’t involve exchanges between govts.

            1. so if your interpretation is true then states could have been charging sales tax for mail-order exchanges all these years, as this doesn’t involve exchanges between govts.

              Dude, I am totally cool with this.

            2. so if your interpretation is true then states could have been charging sales tax for mail-order exchanges all these years, as this doesn’t involve exchanges between govts.

              Dude, I am totally cool with this.

      2. Interstate commerce = transactions that cross state lines.

        Its not that complicated. Its the evasions. distortions, and sub rosa amendments that are complicated.

        1. Interstate commerce = transactions that cross state lines.

          Fuck an A!!!

          I am glad someone finally said it…my head was about to explode from the back and forth going on above.

          Thank you R C

        2. Actually it is going to be more complicated than that, since “transactions” are not physical objects that can be determined to cross state lines in a clear way. You’re going to have to base it on the goods being exchanged crossing state lines, or perhaps whether the transaction involves people in different states, etc.

          But it isn’t as complicated as MNG and his ilk would like it to be.

    2. Very easily. Raich stated that the commerce clause includes the power to prohibit the local cultivation and use of marijuana.

      Prohibiting an activity, and forcing an individual to engage in an activity, are completely separate from each other.

      1. So the “power to regulate…commerce” means you can tell someone how to do commerce and you can totally prohibit them from doing commerce, but you can’t mandate an activity?

        1. What is the argument that the power to regulate includes the power to totally prohibit a type of commerce, but not to mandate a type of commerce?

          I can see the oft-made argument that it meant you can only direct existing commerce or remove impediments, that handles the problem, but if it means you can totally prohibit an activity why not mandate one?

          1. I think that the government can prevent me from killing someone, but I don’t think that it can mandate that I kill someone. Since you already argued that all types of “social intercourse” are commerce, surely you think that murder is.

            You believe that the government can prohibit people from selling dangerous goods to children; can it mandate that people do so?

            Can the government mandate lying or false advertising, if it can forbid it?

            The government can prohibit blackmail; can it force people to blackmail? (Blackmail is, at its heart, a commercial transaction of a sort.)

            1. You’re losing the distinction between the constitutional power to do something and the morality of it in your hunt for an argument ad absurdem.

              Think of the absurd prohibitions that, while yes absurd and immoral, are constitutionally allowed.

              1. Actually he is not. Generally prohibitions are justified on the grounds that the actions involved are deemed harmful to others.

                Now that might be wrong and stupid in some cases, but the agovernment still tries to justify the prohition of the act on the grounds that it’s a harm.

                Conversely, it tries to mandate the insurance purchase on the grounds that NOT purchasing insurance is a harm. But in general the legal code does not penalize people for inaction unless they have taken some prior action to assume a responsibility. It just isn’t done, and it’s usually problematic when it is.

          2. Minge may not make his living selling crack to 10 year olds.

            Minge must make his living digging ditches.

            What’s teh difference?

          3. “What is the argument that the power to regulate includes the power to totally prohibit a type of commerce,…”

            What is the argument that the federal government has the proper authority to totally prohibit a type of commerce? I don’t think very many people who post here besides you think that it does. The areas where the federal government has tried to exercise such authority have been usurpations and court precedent supporting those usurpations badly decided. If it was always obvious that the federal government had the power to totally prohibit a type of commerce under the interstate commerce clause, why did the tempernce movement think they needed a constitutional amendment?

            Your premises are faulty MNG.

        2. Your choosing a few words, and not looking at the totality of the decisions.

          All of the rulings regarding the commerce clause, have stated what power congress has pertaining to an individual who has already engaged in a class of activities. They have never ruled how the commerce clause related when a person has decided not to engage in a class of activities.

          1. That’s why I mention Raich, it was novel in that it read the clause as allowing a total prohibition of a type of commerce.

            1. From the opinion
              “Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.”

              Apart from the commonly used part you could replace prohibiting with mandating and it stands…

              1. You still haven’t provided any examples of the court stating that congress can regulate an individual prior to engaging in a regulated class of activities.

            2. Not really. The court decided that congress has the authority to regulate controlled substances. The Comprehensive Drug Abuse Prevention and Control Act of 1970, allows for the regulation of the manufacture, distribution, and possession of controlled substances.

              Growing marijuana falls under the manufacturing part of the regulation. Not purchasing health insurance has nothing to do with this.

              1. The court decided that congress has the authority to regulate controlled substances…by totally prohibiting interstate commerce in them (hell, even by totally prohibiting intra-state commerce and/or manufacture of them!).

                If it has the power to totally prohibit an economic activity I don’t see how it doesn’t also have the power to mandate one.

                1. If it has the power to totally prohibit an economic activity I don’t see how it doesn’t also have the power to mandate one.

                  That’s your opinion, and you’re entitled to it. That said, until you provide an example of the court ruling that congress can order an individual to enter into a regulated class of activities, than your opinion doesn’t have much basis.

                  This isn’t to say that you will end up being wrong. However, this is new territory, which will require the court to apply their previous commerce clause rulings from a different perspective. I feel that this is the case that will complete the circle, of what can and can’t be legislated under the commerce clause.

                2. Their is a big difference between congress making it illegal to grow marijuana, vs congress creating a law which requires everyone to grow marijuana.

                  If you take it a step further, their is also a difference between making the consumption of marijuana illegal, and ordering everyone to consume marijuana.

                3. If it has the power to totally prohibit an economic activity I don’t see how it doesn’t also have the power to mandate one.

                  Why this symmetry? Most would agree it is justified in forcibly prohibiting, but not in forcibly mandating, many classes of action, such as murder, rape, etc.

                  In such cases, the arguments for why might be so universally agreed upon as even to remain unspoken. However, your above statement is too general to allow for any consideration at all; you simply state A, therefore B.

                  Why should we accept this as a valid contention?

                4. If it has the power to totally prohibit an economic activity I don’t see how it doesn’t also have the power to mandate one.

                  Because the power to regulate an activity presupposes the activity is taking place. Congress has the power to regulate all aspect of an activity, but not to create the activity in the first instance.

                  Having the power to make rules about traffic, for instance, is not necessarily power to create the traffic so that you then can regulate it.

                  Again, it’s not that complicated, when you understand the historical circumstances and purposes for which the Constitution was established and Congress was given those specific powers.

                  Never was it meant or understood to have such plenary power over individuals’ daily lives. The fact that a handful of cowardly, political and unelected lawyers disingenuously “intepreted” the power to be stretched far beyond any previous understanding of it does not mean they are right.

                  If Congress had power X upon ratification, and the language giving Congress that power never changed since that day, how can Congress suddenly now have power X+Y based on that very same language?

                  “The People” – remember, those who ordained and established the Constitution, and from whom the government derives its legitimate power to govern – did not change the grant of power. There was no change in the language of the very document which sets forth the powers granted to Congress.

                  But this is the problem – government suddenly discovering new grants of power in language that has been there for 220+ years, which never before was understood or even presumed or supposed to grant those powers.

                  It’s like suddenly discovering that “red” includes “blue”. So a 200 year-old rule allowing you to paint your house red now means you can paint your house blue if you want, because we’ve developed a new interpretation of what “red” means – and one that nobody ever before would have suspected includes “blue”.

                  If we’re going to just re-interpret the grants of power every few years to give some new power that Congress never had before, and that power keeps growing, expanding and encroaching, well fuck it – just toss the fucking thing out, because the language becomes meaningless. It means whatever we feel like we need it to mean right now, to acheive our desired results.

            3. “That’s why I mention Raich, it was novel…”

              “Novel” in this case being a synonym for “absurd”.

              I am not sure what mileage you think you are going to get from favorably quoting a decision that most people here think the SCOTUS utterly screwed the pooch on.

        3. Pre-13th Amendment, if the government or states could abolish slavery, did that mean that they could mandate that people own slaves, and forbid manumission?

          1. ^^^ THIS ^^^

          2. Purchasing a slave would be considered an economic activity which has a substantial effect on interstate commerce. Under the modern interpretation, this would fall under the commerce clause.

            This brings up a point. If the commerce clause allows congress to regulate the slave trade, when does that authority begin? Is the authority limited to only taking effect once an individual enters into an activity, which is regulated by congress? Or, can the authority require an individual to enter into a regulated activity?

            Put differently, would any regulations made by congress, relating to the slave trade, effect everyone, or only those who have carried out the economic activity of purchasing a slave?

        4. Pretty much, yes.

          The power to regulate commerce presumes that some “commerce” is or has been actually occuring. It allows you to regulate the commerce itself, or to forbid specific transactions. But it cannot compell people to become engaged in commerce so that it can regulate them.

          1. “The power to regulate commerce presumes that some “commerce” is or has been actually occuring.”

            And according to Raich the feds have the power to totally stop all of that commerce. If it can totally prohibit it, why not mandate it? It seems strange to invoke activity to justify the total prohibition of the activity…

            1. Let’s get beyond the fact that the word “commerce” implies prior action.

              Let’s get to the basic philosophical argument. A mandate to some positive action is a much greater burden on the people than a ban on some specific activity. If I an forced to do some specific thing, it precludes EVERY other possible use of my time and/or money.

              By contrast, forbidding specific acts only precludes ONE action at a time. I am still free to choose from an infinite number of other actions.

              Virtually the entire canon of western common law is founded upon the presumption that “liberty” entails not being forced to do things against your will. You must take some action to assume a responsibility before you can be forced to make some positive action in the context of thaat responsibility. Being born entails no such assumption of responsibility.

              There are specific grants of enumerated power in the constitution for what the government can make you do things. And they are specifically enumerated precisely because the founders didn’t want to grant the government general powers to force people to do anything it wanted.

              If the mandates stands, it undermines not just the constitution, but the entire western liberal tradition of individual liberty. If people can be compelled to do things because the government thinks it’s good for some commercial sector, then there are really no limits left except the bill of rights. And that is precisely what people warned about at the time. That the bill of rights would become the only things that the government CAN’T do.

              1. Game. Set. Match

            2. If it can totally prohibit it, why not mandate it?

              The commerce clause allows congress to regulate anyone who produces, distributes, or consumes marijuana. Growing, selling, or possessing marijuana is the trigger that results in an individual becoming subject to the regulations under the controlled substances act.

              So here’s the difference. By growing, selling, or smoking pot, an individual has made the choice to engage in an activity regulated by congress. Under a mandate, an individual has made no such choice.

              Congress can regulate HOW a product is produced, HOW it is distributed, or HOW it is purchased.

            3. And according to Raich the feds have the power to totally stop all of that commerce.

              The power endorsed in Raich cannot be exercised until someone is at least attempting to engage in marijuana production.

              Regulation is like a brake — it can slow and even stop something, but it can’t make it go in reverse.

              1. Er, why? Why would the power to regulate contain the power to brake but not the power to proceed (to use your analogy?).

                I can see the philosophical distinction between activity and inactivity of course, but that is not the issue here. The issue is, if the power of prohibition falls under the power to regulate, why not the power to mandate? When you regulate something you can say “you may not” but you cannot say “you must?” Why conceptually, apart from morally (as Hazel argues) or apart from historical novelty (which half the people here argue) why in the world would it contain the former and not the latter? You may want to grant a state the power to make only prohibitions, not mandates, but that is not inherent in the concept of the power to make rules…

                1. Again, show me a court ruling saying that regulation of activity includes creation of activity.

                  Your argument, such as it is, seems to be that “regulate” covers every imaginable legislative activity under the sun. There’s no reason to think it does. If there’s no commerce, there’s nothing to regulate.

                  Re: the marijuana production question in Raich, the CSA only has any effect on anything once the alleged interstate commerce is attempted. If someone is not growing, possessing, or selling marijuana, then the CSA does not affect them.

                  Whereas if someone is not involving themselves in health care commerce, the individual mandate still affects them.

                2. I can see the philosophical distinction between activity and inactivity of course, but that is not the issue here. The issue is, if the power of prohibition falls under the power to regulate, why not the power to mandate?

                  Because nobody has ever interpreted it that way before, and doing so would run counter to the entirety of the western legal tradition, including the basic principles of liberty upon which the constitution is fundamentally based.

            4. The way the prohibitions work legally is that they’re interpreted as facets of a comprehensive scheme of regul’n. A category of business is conceived, and then everything within that category is subject to regul’n; the entire business presumably could not be outlawed, for then the law would undercut itself, there being no legal business to regulate. So, for instance, controlled substances are subject to rules regarding who can do what with what; you’re allowed to do these things provided you comply with the rules. One of the rules is, no marijuana without permission. But if you contemplate entering the business of controlled substances, you’re supposed to understand that you’re welcome to it, because there are still things you’re allowed to do with some controlled substances even if you don’t have permission to do certain things with other controlled substances. Angel Raich was welcome to enter the business provided she got all the right papers; maybe she’d’ve gone into some business involving a chemical process requiring chloral hydrate, for example. (Real example, I was involved.) The fact that she had no interest in that business is not Congress’s fault.

              That’s how it’s considered “regulation”.

              1. Just to clarify, whatever “commerce” (or activity affecting commerce) Congress wants to prohibit is simply characterized as part of a broader class of activity, which there’s some justifiable reason for treating as a conceptual entity to be legislated about comprehensively, and so the overall legisl’n is not a prohibition, but the prohibited activities are details in the regul’n of a class of activities that are thereby not completely prohibited.

                For example, say you want to prohibit commerce in balls. What you do is pass a bill purporting to regulate all toys or sporting goods, and one of the details is the prohibition of sales of balls. You’re not prohibiting all sporting goods or toys, you’re just regulating them. It’s not about balls, it’s about toys or sporting goods. That’s how it’s said to be justified: as part of a comprehensive scheme of regul’n.

                1. The “nice” way to look at this is that it works if Angel Raich is someone looking to get into the business, and just has to see what she needs to do to comply. It doesn’t contemplate the situation where somebody just wants to do something specific, rather than tailor a business to comply with the law.

      2. “”Very easily. Raich stated that the commerce clause includes the power to prohibit the local cultivation and use of marijuana.”‘

        It also comes with the notion that products grown in a state, for state citizens, not intended for out of state commerce is fair game under the clause. Meaning its reach is more than just interstate commerce.

    3. Easily. That is the entire point of the activity/inactivity distinction.

      It provides the court with a limit outside of Raich that still forbids mandates to buy things.

      In Wickard and Raich the defendents took positive actions to engage in a commercial activity, growing wheat or marijuana, thereby placing themselves in the stream of commerce.

      In the case of the PPACA people who have not taken any action to engage in commerce are being compelled to enter into commercial transactions.

      1. Where is this activity/inactivity distinction in the text? There is just this power “to regulate.” If it can tell you to not engage in commerce, why not tell you you have to?

        All the arguments about this activity/inactivity distinction boil down to: no one has ever tried it before. That was true of all the caselaw the day before it was decided.

        I don’t see any CONCEPTUAL argument that the concept regulate could mean the power to prohibit (Raich) but not the power to mandate. I’ve seen an argument that such a power could be used for immoral and absurd results, but that is true for many prohibitions, and I’ve seen this “well, that part has never been tried.” But mandating is just the flip side of prohibiting, if under Raich it can do the latter, why not the former?

        1. Are you dense? There has to be some commerce for it to regulate.

          The very word “commerce” implies people engaging in all sorts of positive actions. Not inactions.

          Doing nothing isn’t “commerce”. Negations do not have attributes. A not-horse doesn’t have a number of legs or a color or a set of components.

          An “inactivity” is neither economic nor non-economic in nature. It is just inactivity.

          1. MNG is just arguing for arguments sake.

            1. No, he’s after-the-fact rationalizing to justify the PPACA.
              There’s no other way a sane person could come up with this kind of tortured logic.

        2. Here’s where you’re having a problem, MNG: you’ve made up, based on nothing whatsoever, your own definition or concept of what you think “regulate” means. And you continue to be willfully blind to the fact that the clause empowers Congress only to “regulate” COMMERCE.

          As much as you continue to say you really would prefer to, you cannot simply ignore the historical facts that led to the langage chosen, the purpose and intent behind it, and the originally-understood meaning and import of the power granted.

          Again, if we go with the idea that we can continually revise what we think the words mean, and find powers granted to Congress that never were granted before, then why even have the document? All of the other language becomes surplus and thus meaningless. Why grant Congress the additional power to do all those other things, if the power to “regulate” commerce means Congress can tell every single individual in the U.S. what specific activities each person MUST engage in?

          Along those lines, why separately grant Congress the power to “coin” money and also the power to regulate its value? If “regulate” is so broad and all-empowering, wouldn’t the words “regulate the value of money” then mean also that Congress has the power to create money?

          1. The word regulate as defined by Samuel Johnson, meant “to direct; to make rules.”

            You can direct someone to not do something, you can direct someone to do something. Why is that novel or unfathomable to you? I know you don’t like the POLITICAL consequences of that meaning, but that what the CONCEPT of “power to regulate” means.

            1. Even by your logic, “to make rules” means to make rules concerning something that EXISTS.

              It does not mean to make rules compelling something to come into existence.

              It says “regulate commerce”, not “mandate comcerce”. The word regulate implies a thing already in existend to be acted upon.

              Why is it unfathomable to you that the power to regulate inherently implies someone must be DOING SOMETHING that is to be regulated?

            2. And again, you keep focusing on the meaning of “regulate” – while you ignore the plain fact that what Congress has power to regulate is COMMERCE AMONG THE STATES. Let’s posit that “regulate” means “direct or make rules”. There has to be some commerce happenin’ for Congress to be deerectin’ and makin’ rules on.

              If there is no commerce occurring, there is nothing for Congress to “direct” or to “make rules about.”

              The very grant of power, by its plain language, plain meaning, on its face, presupposes that there is commerce occurring among the states, and is it this activity that Congress is empowered to regulate. The power is for Congres to direct or make rules about COMMERCE. It is not for Congres to CAUSE commerce to occur.

              It is disingenuous to ignore the facts of what the language not only was meant to mean, but was understood to mean for well over 100 years after the document was ratified.

              If you had suggested in the first part of the 20th Century the novel interpretation you claim is so clear and evident from the plain language of the document you would have been rightly laughed out of court. Nobody supposed that the Constitution granted Congress the power to require individual citizens to purchase a product or be punitivel fined. I have no doubt such an exercise would easily have been ruled unconstitutional, perhaps even as recently as within the last 40-50 years.

              It is only because of the influence and political pressure of progressive lawmakers and sociological reengineering, and too much slavish reliance on bad precedent in the name of stare decisis that any judge even gives such a question serious consideration today.

        3. Where is this activity/inactivity distinction in the text? There is just this power “to regulate.” If it can tell you to not engage in commerce, why not tell you you have to?

          Point me to any case law, anywhere in the United States, that has said that the power to “regulate” an activity includes a power to require someone to partake in that activity.

          1. Do you not remember the town in Georgia that passed a law requiring every household to own a firearm?

            Of course, Massachussets also recently passed a law with a mandate, no one is saying that is unconstitutional. They acknowledge that a state can require it under their police power to make regulations about the safety, welfare and health of their citizens.

            So the concept “regulate” means one thing for localities and states but another for the feds? That’s daft. Perhaps we should limit the feds power to regulate in this way, but the term “regulate” doesn’t contain that limitation within it when applied to states, why should it when found in the federal Constitution?

            Is a law then not a regulation?

            1. Massachusetts’ state govt does not depend on ICC for any power. The police power is not restricted to “regulation” anyway.

              Is a law then not a regulation?

              Depends on the law. The Selective Service Act is certainly not regulation.

            2. MNG, stop flailing around, you only look desparate at this point.

              Does Massachusetts’ government justify it’s authority on the basis of it’s own version of the commerce clause or is it some other authority?

              Second, wheter or a not a state has the authority to mandate a purchase is neither here nor there to whether the federal government has such authority. The federal government is not a super state government, it does not have all the authority a state government possesses. You are comparing apples to oranges here. I think you are educated enough to understand this but for some reason it is vitally important to you that the federal government has this type of totalitarian power, even if you do not think it should be exerecised.

            3. Do you not remember the town in Georgia that passed a law requiring every household to own a firearm?

              Of course, Massachussets also recently passed a law with a mandate, no one is saying that is unconstitutional.

              OK, you now clearly demonstrate your utter ignorance in this matter. As if there was any question.

              Do you honestly and truly have this trouble distinguishing between the limited and enumerated powers of Congress, granted to Congress by the people via the Constitution, and the powers of a state or local government? The whole point of the 10th Amendment is that Congress gets only those limited powers we gave it, and we, the people of the several states, kept all the other powers – including what is known as “the police power.”

              So it is perfectly legitimate for a state or locality to enact such legislation if its people so choose.

              What a state or local government legitimately may enact has no bearing on and no relation whatsoever with what Congress legitimately may enact.

              1. Except it’s never been completely clear what “police power” covers. It’s commonly said to cover “health, safety, and morals”, but it’s fuzzy.

        4. I have never seen someone invoke the “slippery slope” as a reason to go forward into accepting a government with totalitarian authority.

    4. This MNG loony gets everything oh-so wrong.

      Men can attest the word ‘commerce’into English, first appearing in the the 1530s and arriving from the Middle French, in turn from the Latin ‘commercium’ meaning “trade, trafficking.”

      Com is a Latin prefix meaning “together.”

      Merx is a Latin legal word meaning “merchandise.”

      Also, the Commerce clause specifies that Congress has authority to regulate the rules of transaction among the states.

      The Commerce clause does not authorize Congress to set the volume of transaction. That means Congress cannot decree a minimum amount of transaction nor a maximum; nor can Congress decree if any transaction must happen whatsoever.

      All that Constitution authorizes is Congress to decree rules if transactions already happen.

      Whether or not Congress plays by the Constitution and whether or not the U.S. Supreme Court is corrupt is another matter.

      Yet, this MNG joker should shut already. He or she is wrong, always, on this topic.

      1. Though they can be suggestive, etymologies don’t necessarily determine the meanings of words.

        1. You ought to study law sometime Tulpa.

          Etymology provides the surest basis in all legal discourse.

          Legal cases hinge on definition of well-known legal words, words that have been introduced into law interpretation.

          Americans get law from English common law. English common law derived from Normal law, which derived from Roman law concepts.

          Commerce has legal definition that derive from Roman Law. This is well known by all jurists both in America and the UK.

          1. *Norman …

          2. That may be, but the etymology is irrelevant. The meaning of the words at the time the law was made would seem to be more important.

    5. But the key problem here is that both I and C are important parts of the ICC. The I is not significant with insurance or health care (pharmaceuticals excepted, but the law doesn’t limit itself to pharma issues). To me, that’s just as important as whether or not the subject is “economic”.

  9. Lopez and Morrison needed the anti-confab logic, but failed. It was monumental. Part of this mess, anyway . . . heh.

  10. What these judges need is a Thora Birch lap dance!! Now that’s health care!

  11. We should have stuck with the Articles of Confederation.

  12. I think MNG IS that sniveling guy in the video.

  13. The ICC is written too broadly, like the 2nd is written too obscurely and the 10th should have been stronger. The Founders were naive to think that evil men wouldn’t come along and twist their words into meaninglessness. They thought the right people would be in charge forever, but it barely last a decade. There is too much weasel room in the whole thing, and the weasels have eaten it alive. Instead of relying on “understood” rights and “reasonable” standards, The Bill of Rights should have stated the rights that citizens have, forcing the state to justify violating those stated rights instead of giving it permission to violate rights if done a certain way.

    1. ^^This^^ So, revolution from time to time.

      1. “The Founders were naive to think that evil men wouldn’t come along and twist their words into meaninglessness.”

        Like being on the side of evil?

    2. “The Bill of Rights should have stated the rights that citizens have”

      I couldn’t disagree more because that encourages the idea that government is the source of our rights, as opposed to the protector of our rights.

      Instead of a right simply existing, rights would need to be defined and enumerated by government.

      Not only that, but anything government gives can be taken away.

      No, I don’t like that idea at all.

      1. The problem is, that they were taken that way anyway. That’s why the 9th and the 10th have no teeth at all.

        I agree that it is dangerous as well, but implied rights hasn’t worked so far.

        1. That’s because there is no such thing a rule of law.
          Rule of lawyers is what we’ve got.
          A good lawyer can come up with ten different interpretations of the exact same wording, even contradictory interpretations, as the situation requires.
          Since we have a habit of electing lawyers into political office, we should not be surprised that they interpret wording like “Congress shall make no law” to mean “Congress can make any law”.

          I’d support an amendment banning lawyers from serving in any government job or elected position other than as a practicing attorney, though they’d find a way around it given enough time.

        2. There is no way to write the 9th and the 10th with any teeth. As soon as an FDR utilitarian-ends justifies the means type gets control of the courts those amendments are toast no matter how tightly they are written.

          1. Sure there is. Amend the 10th to give states the power to kill a bill. If X number of states vote down a bill, then it is void.

            The court shouldn’t even have a say regarding the constitutionality of ObamaCare, because 27 states have told the feds to go screw themselves. That’s all that should be required to nullify the law.

            1. The states used to be able to vote down bills when the Senators were appointed by the States instead of being popularly elected.
              The 17th Amendment destroyed a very important check on federal power.

      2. I don’t know about everyone else here, but one of the major points I was taught in high school was that the Bill of Rights was not supposed to be an enumerated list of things the government couldn’t do. One of the major objections to it was that enumerating such rights would shift the presumption that the enumerated powers of the government were it’s limits to the attitude that ONLY those things in the bill of rights were forbidden to it.

        It seems that is exactly what has happened.

        I am personally shocked that many Americans seem unaware of this basic controversy surrounding the bill of rights and the limits of federal authority. The schools really are terrible.

        This is actually kind of an argument for public education. People need to be educated about their rights and about the philosophy behind the powers of the government, or they’ll be too easily manipulated by authorities.

        1. The Ninth Amendment was supposed to take care of that problem too, but of course it’s essentially ignored, except when it can function as a magician’s hat for a liberal justice to legislate from the bench.

        2. The problem is both sides of that argument are true. If there were no Bill of Rights, the totalitarians would say that there nothing prohibiting their policies. The amoral will always find a way to rationalize what they want.

      3. It can always be written that citizens have the rights with or without government, by their nature as persons; that is, as an assertion of moral truth. It can then specify in explicit terms the legal requirements on government in order to subjugate power to morality.

    3. Yes, I kind of skipped over that as I was agreeing. I hate the idea of lists of rights so much that I think the Bill of Rights was a mistake.

      We need a simple list of simply defined powers, and an absolutely clear prohibition about taking on more powers. But, this would probably also be destroyed over time.

      1. “We need a simple list of simply defined powers”
        Like, I dunno, say.. the Constitution?

        “and an absolutely clear prohibition about taking on more powers”

        Like, I dunno, say.. the Tenth Amendment?

        1. Yes, sarcasmic, that’s what those things were supposed to be, but I agree with SugarFree, that there are parts that are just too obscure, and thus too easily opened the door to evil.

          However, the 10th Amendment is pretty damn clear, and the evil ones simply ignored it. So, maybe in the end documents do nothing and the people simply get the government that the majority consents to. When the consent shrinks below a critical level, revolution happens.

          1. Personally I like the idea presented in “The Moon Is a Harsh Mistress” where one house needs two thirds to pass legislation and the other house needs one third to repeal it.

            Not that that would ever happen.

    4. Interesting the issue of the breadth of the “necessary and proper” clause was a big problem for people at the time. LOTS of contemporary politicians were afraid that it, in combination with granted powers like the commerce clause, would turn into a general police power.

    5. Instead of relying on “understood” rights and “reasonable” standards, The Bill of Rights should have stated the rights that citizens have, forcing the state to justify violating those stated rights instead of giving it permission to violate rights if done a certain way.

      They definitely wouldn’t have mentioned a right to be free from wiretapping or having your emails read by the govt. Also pornography and miscegenation probably wouldn’t have been protected.

      So there’s a tradeoff. All those weasel words make the BoR extensible too.

  14. Say what you will about the early Progressives, but one thing good about them was that if there was doubt about whether something they wanted was constitutional they passed a constitutional amendment (i.e., the income tax, direct election of senators, women voting, prohibition). Later generations have just totally given up on this option.

    1. Given up, or found a work-around?

      Why bother with Amendments, or legislation for that matter, when unelected bureaucrats can accomplish your goal?

      No accountability at all.

    2. Indeed they have given up on the quaint notion of persuading their fellow citizens, in favor of imposing the “progressive” vision on them. No need to vote on anything, just rule by fiat and send the dissenters to jail.

    3. Later generations have just totally given up on this option.

      And why would that be? Because they can’t actually get Americans to vote for one? They have to sneak their constitutional reinterpretations through the twisted logic of the commerce clause, because they knew Americans wouldn’t support a tax.

      Why don’t they just accept that people don’t want what they are selling, regardless of what wrapping paper they dress it up in?

    4. Agreed. Even if the ideas were asinine, it still respected the idea of a Constitution to define the rules that apply to rulers, and to check them — and even to check the will of the people if what it seeks can substantially alter the relationship between citizen and government or between different government entities and that will is not strong and clear.

    5. But the people who set up the current progressive tactics were still largely the early progressives grown jaded, cynical, and frustrated with the limitations of a constitutioanl republic. The early progressives were still bad actors on the American political stage.

  15. I am guessing that whenever this gets to SCOTUS, it is going to be a clusterfuck of an opinion. One of the ones where 4 join the opinion but there are 4 concurrences, two different dissents, dissents to the concurrences. What will be left if no one having any fucking idea what the law is.

    1. Yup. Try figuring out what the rule is in Bush v. Gore. That’s one hell of a decision to try to parse. This one is going to be worse.

  16. Liberty and Enumerated Powers:…..ed-powers/

    1. Yes, that’s what I’m talking about.

      I thought it was common knowledge that many contemporaries at the time the Bill of Rights was passed argued that it was dangerous to specify explicit rights. It shifts people’s attention away from the limits of the enumerated powers, and creates the perception that ONLY those things in the bill of rights are the limits.

      I’m not necessarily convinced by this argument, since I suspect the limits would be stretched anyway. But at least the Bill of Rights wouldn’t be there as a distrctions, alloowing proponents of the state to point at it as the limit, instead of the enumerated powers of the constitution.

  17. I don’t think the language is particularly obscure. I think we as a people have lost the will to enforce the language.

    Really, the expansions in power and stripping of rights have come from torturing the language in ways that would simply have been unacceptable to a country that cared much about liberty. That country would have (and did!) require that the Constitution be amended. Since FDR, that is no longer the case.

    And a new, updated, clarified Constitution will fare exactly the same.

  18. The official mouthpiece of Dear Leader speaks to the people:

    The challenges focus primarily on one provision of the law – people on both sides of the debate agree that the vast majority of the act is clearly constitutional. And the arguments for overturning the Affordable Care Act are simply without merit.

    That’s otherwise known as the “Good Enough for Government Work” litmus.

    1. Oops!

      The link……..and-courts

      1. If there is no Severability Clause then if one part is struck down the whole thing is tossed. Its my understanding there is no Severability Clause, I could be wrong.

        1. You are correct – there is no severability clause.

  19. The constitution is over 20 years old so I can’t understand it…

    We should just ignore the whole thing.

    1. The fact that he still has a job with a major newspaper is and will always be a mystery to me.

  20. I have a question for the mandate’s defendsers and advocates:

    Think about this. Is universal health care really so important to you that you are willing to set up a legal precedent that would allow congress to mandate the purchase of McDonald’s hamburgers?

    1. Are you kidding? This is the brass ring of power for the port side. Forcing the purchase of anything is a feature, not a bug.

  21. Here I come to save the day!

  22. I’m surprised no one’s offered the obvious solution: Amending the Constitution to limit the ICC and give the Central State maybe 10 years to pack its bags.

  23. Usually, with most insurance today, the amount the insurer pays the docs is already agreed upon. If you have insurance B, then it doesn’t matter which doctor you go to, insurance B will pay the same. Only thing you can shop around is the health insurance check “Penny Health Insurance” for health insurance ideas to save money.

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