April 1, 2012

The Commerce Clause and the Supreme Court: Will Federalism Survive?

by Hal Gershowitz

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 Our focus in these weekly essays has been largely related to economic issues and political matters.  We divert this week to examine what might well be the most important issue facing the country, the health care case recently argued in front of the Supreme Court, and its broader ramifications regarding our founding document, the Constitution of the United States.  The case consumed three days of oral argument largely due to its complexity and its affect on our federal system.

On the first day of arguments the Court wrestled with the question of whether the health insurance premiums constituted a tax, but since the Obama Administration had twisted itself like a pretzel to claim it was not a tax, after once claiming it was a tax, that issue should be easy since the comments from Justices indicated they were in agreement with one another.

Day two was consumed by arguments on the centerpiece of the law:  its constitutionality and the limitations on Congress’ ability to make laws on interstate commerce.  We will return to these issues later.

Day three dealt with whether the entire law would fall if any part was found to be unconstitutional or whether it was severable, and such provisions as requiring pre‑existing conditions to be covered could still stand.  This is an important point, but we will spend little time on it in this essay because we believe the law is severable and Congress does have the right to dictate certain minimum coverage provisions in the health care market place.  However, the Court may well decline to parse through the nuances of which provisions to save.  Speaker Pelosi once told the House to pass the bill and then we will see what is in it.  The Court may decline that offer.

But the day two issues are the big ones here . . . perhaps the most important cases since the Court upheld the right of Congress to create Social Security, and in a way, it is a case which will be quoted in the future like Brown vs. Board of Education.

As was argued in more than one of the amicus briefs filed with the Court, if the “commerce clause” permits the federal government to mandate that citizens purchase health insurance then there is nothing left of the limitations that clause originally imposed on the Federal government. In the consolidated brief with several states’ attorney generals, it was stated:

“The federal government was correct about one thing in its brief in response.  This Court should consider not just the constitutionality of the individual mandate  but also the severability question… But it is entirely artificial to consider how much of the [Act] would survive invalidation of the individual mandate without considering the States’ serious challenges to the rest of the Act.  This Court should grant the States’ petition in full.

“As more than half the Nation’s States are attesting in this unprecedented action, the challenged provisions fail.  The States have, at a minimum, presented this Court with substantial questions whether core provisions of the Act effect unconstitutional incursions upon state sovereignty.”

We have not discussed individual Justices’ questions and comments during oral arguments.  They may or may not be revealing as to how they decide the case.  We will need to wait for the decision in June.  Our own view is best expressed in a Wall Street Journal editorial on March 28:

“The government is mandating that everyone buy health insurance specifically, but by this reasoning any economic or personal decisions that touch on health care could be used as a pretext for federal police powers.  People who lead healthy lives consume fewer medical services than others, so the government could mandate exercise, a healthy diet, and more.

This is power without limit, which is not what the constitution provides, or what its framers intended, or what the Supreme Court has ever tolerated.  That is why this week’s arguments have been so careful, why they have revised the establishment’s thinking and why they are so important for the future of American liberty.”

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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One response to “The Commerce Clause and the Supreme Court: Will Federalism Survive?”

  1. mark j levick says:

    Technically the Act does not require everyone to buy health insurance. Those who choose not to do so are assessed a fine . Thus one can be taxed for not doing something he or she does not wish to do. In order to invoke the Commerce clause the Act in effect creates interstate commerce so the Government can regulate that commerce. As you so ably point out, Big Brother is alive and resides in the White House and on one side of the Congressional aisle. If the public wants to cede individual liberties to the Federal Government for the greater good of all then four more years will lead to a permanent Nannie State by the will of the electorate. The Supreme Court can save us once but the Supreme Court as constituted during the next four years will have no interest in so doing.

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