Not all buy health care as commerce

Politico
By: Stephen Presser
March 2, 2011 04:41 AM EST

For former Solicitor General Charles Fried and Harvard legal scholar Laurence Tribe, President Barack Obama and members of Congress who voted for the health care law, health care ranks as “commerce.” Since Congress can regulate commerce — the Constitution expressly says so — and since the individual mandate contributes to that regulatory scheme, there can be no doubt of its constitutionality.

Indeed, former House Speaker Nancy Pelosi (D-Calif.), when questioned about its constitutionality, responded, “Are you serious?”

Given that Congress has passed Medicare and Social Security, and the courts acquiesced; and given that, since the New Deal, Congress’s commerce power has been used to regulate virtually everything — including home-grown wheat and marijuana — is there a respectable argument that the health care legislation is flawed? Were federal Judges Roger Vinson and Henry Hudson smoking some home-grown product?

There are many of us who don’t think so. And many of us believe that perhaps Fried, Tribe, Obama and Pelosi are misreading the Constitution.

The real question is whether the Constitution sets limits on the powers of the federal government. True, the Constitution permits Congress to regulate commerce, but the 10th Amendment also states that the powers not granted to the federal government are reserved to the states and the people.

This has been understood, for more than two centuries, to mean that the federal government is one of limited and enumerated powers. I cannot understand how Tribe’s and Fried’s arguments could not be invoked to allow Congress to regulate and control virtually any activity. This is the point that Vinson and Hudson were making when they ruled that a line should be drawn between “activity” (like growing wheat or marijuana) and “inactivity” (like deciding not to purchase health insurance).

The law’s critics have a point when they argue that if Congress can compel us to buy health insurance (on the grounds that if we all do, it can decrease costs), there is no reason why the legislature could not compel us, on the same theory, to eat our vegetables and exercise.

Perhaps health care is commerce — though Vinson was not sure on that point. Indeed, Fried, during his recent congressional testimony, quoted sweeping statements from Chief Justice John Marshall — though this was from a case involving navigable waters, not health care.

But the real debate is over whether we have a federal government limited in its powers or not.

For more than two centuries, our Constitution has been understood to mandate that the primary regulators — those who give us our laws on contracts, torts, property, business associations and many other legal doctrines — ought to be the state and local authorities. For those are the lawmakers closest to the people.

This, in essence, is the argument of the state officials who have joined in challenging the health care law.

This Jeffersonian principle still makes a great deal of sense. If there are any constitutional limits to the federal government that remain, then, quite possibly, Vinson and Hudson have gotten it right.

It is telling that advocates of the constitutionality of the health care law have not been able to tell us what limits on the federal government remain. Perhaps they have just accepted that the federal government is now all-powerful.

Some of us still don’t think so.

Stephen Presser is the Raoul Berger professor of legal history at Northwestern University School of Law and has joined in amicus briefs challenging the constitutionality of the Patient Protection and Affordable Care Act.