Can the Federal Government Do Anything It Pleases?

The Supreme Court is now hearing what may be the most important case of this century–whether Obamacare is constitutional. The justices have allotted a nearly-unprecedented three days of time to arguments, well aware of the gravity of their decision.

Congress thinks it can demand that each of us buy a private product–health insurance–on the theory that it affects interstate commerce. Interstate commerce is one of Congress’s enumerated powers under the Constitution. Congress has used it to justify its power over everything from wheat grown for one’s own consumption to marijuana cultivation. If an activity can in some fanciful way be said to affect commerce among the states, the Court has largely sided with Congress. This case, though, is different.

What makes this case unique is that for the first time, Congress is asking for authority to regulate commerce that occurs only after it is mandated by…Congress. In other words, Congress reasons, we have the power to regulate it after we make you engage in it.

Let’s make short work of the liberal arguments for Obamacare, which hinge on little more than incredulity that anyone would object to being forced to buy something he does not want. Liberal pundits are busy today howling that of course it is constitutional. That’s it. That’s their argument. Since some of you may fail to even be interested, much less persuaded by such a watery declaration, let me inject some seriousness into it for the sake of argument.

First, the weaker version: Not engaging in commerce is the same as engaging in commerce. Pause for a moment and let that sink in. Obamacare, so the argument should have run, is constitutional because it is no different from any other kind of interstate commerce. The position is that there is no material difference between doing and not-doing something, and so the case never should have been brought in the first place.

Should the Court decide on that basis that Obamacare stands, we could rightly conclude that no prohibition against much of anything is meaningful. This would be the worst possible outcome, signalling that something has gone horribly wrong not only with our Supreme Court, but law in general. Words that can mean anything mean nothing–a view that postmodernists in the Ivory Tower may embrace, but sane people find unworthy of consideration.

The next argument is slightly less silly, but no more convincing. The health insurance market is unique because everyone needs it eventually. Not buying insurance affects the market and hence (their argument) is regulable under the Commerce Clause. The problem most of us, including several Justices, see with this is that the same logic applies to just about anything we do/don’t do–like purchasing cars and onions. Even more to the point is an example raised by one justice that funeral services, which like health care are eventually required by everyone, could be mandated. The state has to bury you if no one else will, so Congress could force everyone to purchase funeral services.

Conservative justices during arguments are expressing grave reservations about this line of reasoning. They rightly know that once that precedent is set, it opens the door for most any intervention Congress pleases, from the purchase of cars to condoms and everything in between. Congressional authority over private economic activity would know no bounds. Questioning over the last two day has set off a panic among liberals, who mistakenly thought this case was a slam dunk.

Hopefully, the skepticism we see reflected in arguments thus far indicates that the Court will rule Obamacare’s individual mandate unconstitutional. This would force Congress to pass it again, if they choose to try, as a tax-supported program–clearly constitutional even if stupid. Democrats want desperately to avoid calling it what it is because they know few will support it. That the individual mandate made it this far is largely due to their ability to pass it at midnight on Christmas Eve by a margin of one vote on the premise that it was not a tax. The Demperor, though, is naked as a jaybird now and less willing to be seen in public. Good.

This health care plan is an unmitigated disaster for numerous reasons, but the particulars of this case are unimportant compared to the principle involved. At issue is a ruling on whether Congress is limited in any way from inserting itself into private economic matters. Should the Court uphold it, expect progressives to quiver with excitement as they contemplate how much better the world will be for their regulatory wisdom. Expect the rest of to start asking ourselves just when civil disobedience is justified.

About Terry Noel

I am an Associate Professor of Management and Quantitative Methods at Illinois State University. My specialty is entrepreneurship.
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2 Responses to Can the Federal Government Do Anything It Pleases?

  1. Dick Richards says:

    I’m tempted to go cancel my health insurance, just so the feds will tell me to pay the penalty, just so I can say “Hell, no! Throw me in jail, but I’m not paying it.”


  2. Dick Richards says:

    Here’s another thing to consider. Everyone keeps saying “everyone will eventually require health care, ergo everyone will eventually be in the market.” But the issue is healthcare INSURANCE. Not everyone will buy heathcare INSURANCE. In fact, if I was a rich man, I absolutely would NOT buy healthcare insurance. So, any person with the means to directly pay for his own health care, might NEVER enter the insurance market. In fact, if the current insurance market was truly an insurance market instead of a third party payer system, there could be a lot of people who would never enter the market.
    But if the feds can vote 9-0 to insist that wheat grown for consumption only by the farmer growing it constitutes interstate commerce, then to me the gate is wide open for anything to come through.
    I just wish the justices would ask themselves this question: If James Madison were in the room, which way would he vote?


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