Overturning ObamaCare in the Supreme Court Will Not be a Slam Dunk

U.S. Secretary of Health Kathleen Sebelius recently coauthored a piece with Eric Holder for the Washington Post, titled "Health reform will survive its legal fight."  To the extent that Judge Henry E. Hudson struck down the "lynchpin" of ObamaCare -- the insurance mandate -- a legal fight certainty exists: the constitutional question of the new mandate will make its way to the docket of the United States Supreme Court.

Because the powers delegated to the federal government are "few and defined," ObamaCare must now find after-the-fact constitutional support.  The legal query is whether Congress may use its old standby, the Commerce Clause, to support its power-grab.  As peculiar as it sounds, the individual mandate will live or die on the question of Congress's power to "regulate Commerce among the several States."

As with other sections of the Constitution that have been misused over the years, the case law precedent on the Commerce Clause has taken on a life of its own.

No longer does the intent, purpose, meaning, or even context of the Constitution's original language carry much weight.  What makes a matter constitutional or unconstitutional is often not the Constitution itself, but the string of cases interpreting the Constitution.  The cases closest to being on point become the standard for constitutionality no matter how far removed the holdings are from the actual Constitution.

Early on when deciding Commerce Clause cases, the Supreme Court looked to actual commerce among two or more states and ruled on whether certain state laws or policies burdened commerce or made it unfair.

Commerce was understood to mean the trade or exchange of goods among the states, and regulation meant making trade regular and equal among the states.

Intrastate activities such as production, manufacturing, and mining were beyond the reach of Congress until well into the 20th century.  The Supreme Court resisted much of the onslaught of New Deal legislation that Congress passed under the guise of the Commerce Clause.  But FDR's "court-packing" plan of 1937 caused the Court to suddenly see things in a new light.  The Court embraced the idea that the "effects" of local commercial activity on interstate commerce may be such that the activity should become subject to Congress's regulatory power.

From there, when dealing with intrastate activity, the Court would determine whether the activity's "effects" on interstate commerce were "substantial," "material," or "direct."  In order to escape the reach of Congress, the effects of intrastate activity needed to be indirect, immaterial, or insubstantial.  Regarding all of those cases, it should be noted that the intrastate goods produced were at least intended for local commerce.

Then came the landmark 1942 case of Wickard v. Filburn, upon which the Obama administration relies heavily in its health care litigation motions.

In the Wickard case, an Ohio farmer was penalized for exceeding the federal quota on wheat production even though the excess was for farm use and not for market.

In Wickard, Justice Jackson acknowledged that no precedent existed for regulating goods that were not intended for commerce.  But that acknowledgment didn't stop the Court from making new rules.

Jackson hearkened back to the 1824 case of Gibbons v. Ogden and stretched the words of Justice Marshall as follows:

At the beginning, Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes. For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce.

The Gibbons case involved a New York injunction which placed a navigational burden on commerce among the states.  In Gibbons, the traditional view of commerce was applied, and "navigation" was ruled to be a necessary part of interstate commerce.  What Justice Marshall stated was that "the sovereignty of Congress, though limited to specified objects, is plenary as to those objects" -- provided that, in context, we are talking about actual commerce issues among states.

And Marshall did not "warn" that the Court must not restrain Congress's exercise of power, but instead suggested that regarding the exercise of a legitimate power, the electorate may prevent abuse, whether the subject is declaring war or regulating commerce.

By inaccurately paraphrasing Marshall above, Justice Jackson is effectively telling Obama, Reid, and Pelosi that if they can ram legislation through while citing the Commerce Clause as their authority, it's constitutional.

Additionally, Jackson used the following bombshell that the Court had dropped earlier in the same year (1942) in United States v. Wrightwood Dairy Co.:

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end[.]

As if the first sentence in the quote above isn't shocking enough, consider the word "or" and the words that follow.  In that school of thought, the feds can regulate what children eat at school just as easily as they can revolutionize the entire health care system.  And there is nothing to prevent Congress from regulating what the subjects of the health care system consume.  That's why Rep. Pete Stark (D-CA) could confidently say, "The federal government can do most anything in this country."  Under the precedent set by Wickard, Stark is correct.  Under the actual Constitution, his words are anathema to the country's founding principles.

The Wickard case opened the door wide for federal overreach.  The 9th and 10th Amendments were successfully shelved as the focus shifted from "the permissibility of state activity" that burdened commerce to the "breadth" of Congress's Commerce Clause powers.

A key principle of Wickard that has been largely overlooked is that Congress was permitted to regulate non-commercial wheat merely because it was "available for marketing."

In a sense, storing wheat for personal use was non-activity (non-commercial activity), but the Court nevertheless allowed Congress to extend its powers.  That potentially spells trouble for striking down the individual insurance mandate.  When it comes to misusing the Commerce Clause, anything is possible, including the suggestion that inactivity may be regulated.

Of course, with ObamaCare, the feds are geared up to force activity.  On that point, ObamaCare should fall even under the most liberal interpretation of the law.  The federal regulation of wheat production is repugnant to freedom.  But that pales in comparison to Congress mandating a citizen endowed by Divinity with unalienable liberty to purchase a product for her body.

Another point to make, which distinguishes ObamaCare from other cases, is that the "Affordable Health Care Act" is not about regulating the commerce of the health care system, but instead is fundamentally about transforming the system.  If it were about regulating interstate commerce, a law allowing health insurance to be purchased across state lines could have been advanced.  Such a solution would be consistent with Congress's actual power to regulate the commerce among the states.

Of course, ObamaCare is more about spreading the wealth around than it is about interstate commerce.

Will the Supreme Court rule in favor of individual liberty under the Constitution and draw a line in the sand?  Or will the Court expand Congress's reach via the Commerce Clause even farther by forcing citizens to purchase a product?  We shall see.

Monte Kuligowski is an attorney whose work has been published in several law journals.
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