Can gov­ern­ment force you to eat broc­coli?

If jus­tices don’t draw line against Oba­macare, will be­come supreme

The Washington Times Daily - - Opinion - By An­drew P. Napoli­tano

This week, the Supreme Court mea­sured Oba­macare to see whether it fits within the con­fines of the Con­sti­tu­tion. The big picture is whether the Con­sti­tu­tion lim­its the be­hav­ior of the fed­eral gov­ern­ment to the plain mean­ing and his­tor­i­cal con­text of the Con­sti­tu­tion, or whether clever lawyers and politi­cians can in­ter­pret lan­guage in the Con­sti­tu­tion so as to jus­tify what­ever Congress wishes to do. Does the Con­sti­tu­tion mean what it says? Does it limit the fed­eral gov­ern­ment to the pow­ers it has del­e­gated to Congress? Or is it a blank check for Congress to do what­ever it can get away with?

One of those del­e­gated pow­ers is the power to reg­u­late in­ter­state com­merce. The lan­guage in the com­merce clause au­tho­rizes Congress “to reg­u­late” com­merce among the states. When James Madi­son wrote that phrase, he and the other framers were an­i­mated by the star­tling lack of in­ter­state com­merce among the states un­der the Ar­ti­cles of Con­fed­er­a­tion. This was the pe­riod af­ter the Rev­o­lu­tion and be­fore the Con­sti­tu­tion when the mer­chants and bankers who had fi­nanced the Rev­o­lu­tion also con­trolled the state leg­is­la­tures. They were both cred­i­tors, be­cause they had lent money to the state gov­ern­ments to fi­nance the war, and debtors, be­cause they now con­trolled the ma­chin­ery of state gov­ern­ment that owed them money.

What did they do? They were the orig­i­nal cor­po­ratists and crony cap­i­tal­ists. They formed car­tels to di­min­ish in-state com­pe­ti­tion, and they im­posed tar­iffs to dis­cour­age out-of-state com­pe­ti­tion. Thus, in or­der to turn 13 minieconomies into one large econ­omy and pro­tect the free­dom to trade, Madi­son used the word “reg­u­late,” which to him and his col­leagues meant “to keep reg­u­lar.” So, the Con­sti­tu­tion del­e­gated to Congress the con­sti­tu­tional power to keep in­ter­state com­merce reg­u­lar by pro­hibit­ing state tar­iffs, and it did so.

But Congress was in­tox­i­cated with its new pow­ers, so it be­gan to keep com­merce reg­u­lar by reg­u­lat­ing the fares charged by fer­ries go­ing from Hobo­ken, N.J., to New York City — and the Supreme Court said yes. From there, Congress reg­u­lated the wages of work­ers who pro­duced goods that were put onto those fer­ries — and the Supreme Court said yes. Then Congress reg­u­lated the wages, work­ing con­di­tions and meth­ods of man­u­fac­ture of fa­cil­i­ties whose goods never moved in in­ter­state com­merce, so long as the eco­nomic ac­tiv­ity gen­er­ated by the pro­duc­tion of those goods had a mea­sur­able ef­fect on in­ter­state com­merce — and the Supreme Court said yes.

This ju­rispru­dence has re­sulted in the courts ap­prov­ing the con­gres­sional reg­u­la­tion of the thick­ness of leather in shoes, the water pres­sure in home show­ers, the amount of sugar in ketchup, ad in­fini­tum. Wher­ever you go in the United States, it is im­pos­si­ble to avoid con­fronting fed­eral reg­u­la­tion of hu­man be­hav­ior un­men­tioned in the Con­sti­tu­tion but jus­ti­fied by Congress un­der the com­merce clause. It will be nec­es­sary for the court to put a back­stop on this ab­surd pro­gres­sion of con­gres­sional power in or­der to in­val­i­date Oba­macare’s in­di­vid­ual man­date. The other line of com­merce-clause ju­rispru­dence that the court will con­front started with a farmer grow­ing wheat ex­clu­sively for the con­sump­tion of his fam­ily dur­ing the Great De­pres­sion. The feds or­dered him to grow less wheat. He re­sisted that or­der, and his re­sis­tance led to an in­fa­mous Supreme Court opin­ion that up­held the feds’ or­der. That 1942 case stands for the propo­si­tions that even in­fin­i­tes­i­mal eco­nomic be­hav­ior, even be­hav­ior that is not nu­mer­i­cally mea­sur­able, even be­hav­ior that is not of a com­mer­cial na­ture, even be­hav­ior that does not move prod­ucts across in­ter­state lines can be reg­u­lated by Congress if, when all the sim­i­lar be­hav­ior in the land is taken in the ag­gre­gate, it could have an ef­fect on in­ter­state com­merce. This ag­gre­ga­tion the­ory is the most anti-his­tor­i­cal, hys­ter­i­cal, disin­gen­u­ous, con­vo­luted rul­ing in the court’s his­tory. But it is still the law, and it will be nec­es­sary for the court to dis­tin­guish or over­rule this case, too, in or­der to in­val­i­date the in­di­vid­ual man­date.

Jus­tice An­tonin Scalia re­minded his col­leagues dur­ing oral ar­gu­ments this week that the Con­sti­tu­tion is the supreme law of the land and it means to­day what it meant when it was writ­ten and rat­i­fied. If Congress can com­pel you to buy health in­sur­ance be­cause that’s good for you and for the coun­try’s eco­nomic health, he asked, can it force you to eat broc­coli? And if it can, what is the value of hav­ing a Con­sti­tu­tion that was writ­ten to limit the gov­ern­ment’s pow­ers?

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