Congress Has No Constitutional Authority to Compel Commerce

From Roll Call:

Congress Has No Constitutional Authority to Compel CommerceBy Rep. Tim Griffin
Special to Roll CallMarch 26, 2012

It won’t surprise readers that I’m opposed to President Barack Obama’s health care law. I’ve voted repeatedly to repeal it and defund it. I believe our health care system is in drastic need of innovative, patient-centered reforms that encourage competition and increase consumer choice, not the bloated bureaucracy, tax increases, rationing and mandates in the president’s government takeover.

The health care law’s individual mandate forces nearly all individuals to buy health insurance or pay a penalty. The mandate cannot be severed from the rest of the law because it is the primary mechanism through which the law’s changes are supported. Without the mandate, the law collapses.

The central question that the Supreme Court will decide is whether the mandate is constitutional. The Constitution’s Commerce Clause grants Congress the power “to regulate Commerce ... among the several States” (Article 1, Section 8, Clause 3). The health care law assumes these words give the federal government the power to force individuals to buy health insurance. In reality, the law is fundamentally different from any legislation that Congress has ever enacted to regulate commerce.

After all, if individuals are considered to be actively engaging in interstate commerce simply because they are not buying a product — and can thus be regulated and ordered to make a purchase — what exactly can’t Congress “regulate” and require? In a Constitution of specific and enumerated powers, what is the limiting principle?

Historically, Congress hasn’t paid much attention to the confines the Constitution establishes. Following the Supreme Court’s extraordinarily broad interpretation in Wickard v. Filburn (1942), Congress has used the Commerce Clause to justify its involvement in almost anything. The Supreme Court addressed this in United States v. Lopez (1995) and United States v. Morrison (2000).

The Lopez case dealt with Congress’ attempt to regulate the possession of firearms in school zones, and the court ruled Congress was not within its power because the activity being regulated did not “substantially affect” interstate commerce. In the Morrison decision, the court reaffirmed this standard and also ruled that the 1994 Violence Against Women Act was not economic in nature and thus not within Congress’ power to regulate interstate commerce.

Health care, however, does substantially affect interstate commerce and is economic in nature. Indeed, proponents of Obama’s health care law argue it is a unique national market in need of a very unique interpretation of “regulation,” one that includes the power to compel commerce. Will the Supreme Court agree? Not if it looks to our founding document.

When enumerating the powers of Congress, the Constitution clearly presents the power to regulate as separate and distinct from the power to raise and create. Congress was given the power to create money and the power to regulate it. Congress was given the power “to raise” an army and the power to regulate it.

But in the case of commerce, Congress is given only the power to regulate it. The power to raise or create it is not there. For money and the military, the power to regulate does not include the power to raise; rather, it follows it. This suggests that for Congress to regulate commerce, it must already exist, and it does not possess the power to compel it. Congress cannot force you to buy health insurance.

That’s why Obama’s health care law is unprecedented and unconstitutional. The framers never intended an infinitely broad Commerce Clause that would let Congress dictate individuals’ purchases. If they had, giving Congress a plenary power to regulate commerce would have been quite controversial — and more likely than not inspired a more voluminous Bill of Rights. Unlike the power to regulate an army, the founders thought the power to raise one was troublesome. Their ensuing debate resulted in the Second and Third amendments.

Will the Supreme Court once again define the limits of the Commerce Clause? It should be noted that members of the current court participated in the Lopez and Morrison decisions. In both cases, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy joined the majority opinion authored by Chief Justice William Rehnquist. Two of the more recent appointments to the court, Justice Samuel Alito and Chief Justice John Roberts, no doubt share similar views. That’s a majority of five.

If the Supreme Court fails to strike down the health care law, America will be changed forever. Gone will be the days of “limited government,” when something had to move before government could tax it, keep moving before government could regulate it and stop moving before government could subsidize it. What would freedom look like then?