“Congress’s reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient,” explain David B. Rivkin Jr. and Lee Casey (The Wall Street Journal, March 21):
As the Supreme Court has consistently acknowledged, the Constitution denies the federal government the type of broad public health and welfare regulatory authority known as a “general police power,” which is reserved exclusively to the states. The court has also repeatedly held that preservation of this division between federal and state authority is a matter for supervision by the courts, and its precedents make clear that congressional Commerce Clause regulation must be subject to some judicially enforceable limiting principle.
The defining characteristic of a general police power is the states’ ability to regulate people simply as people, regardless of an individual’s activities or interaction with goods or services that might themselves be subject to regulation. Thus, the Supreme Court has ruled that states, exercising their general police power, can require all resident adults to obtain a smallpox vaccination. Only this type of authority could support ObamaCare’s individual mandate, which applies to all Americans as such, regardless of any goods they may buy or own, or any activities in which they might choose to engage.
Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use health-care services, is a sufficient basis for federal regulation. Both of these arguments, advanced by ObamaCare’s defenders, are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.
The Supreme Court will hear the case against ObamaCare on Monday, Tuesday, and Wednesday.
I am an Air Force Veteran of the Cold War and the First Gulf War (Operation Desert Storm). I live on a wooded hilltop with my two rescued dogs, Yogi and Ranger, and two rescued cats, White Sox, and Mittens. We share my land with several deer, a family of red-tailed hawks, a barn owl, numerous squirrels (that my dogs and the cat tree together), a family of pileated woodpeckers and numerous cottontail rabbits, and an occasional opossum or raccoon.