commerce clause kaput?
Source Jim Devine
Date 12/03/31/12:53

New York TIMES
Broccoli Mandates and the Commerce Clause

“If the government can do this, what, what else can it not do?” asked
Supreme Court Justice Antonin Scalia this week in arguments on the
constitutionality of the requirement that nearly all Americans buy
health care insurance or face a penalty.

“All bets are off,” Chief Justice John G. Roberts Jr. gravely added.

Thus did this week’s Supreme Court arguments over the Obama
administration’s health care law emerge as a historic test of federal
power versus individual liberty, all the more remarkable given that
just a few weeks ago, the overwhelming view of constitutional scholars
was that this wouldn’t be a close case, with even conservative
justices likely to uphold the law.

That it now looks not only possible but perhaps likely that the
Supreme Court will strike down the health care law as
unconstitutional, probably in its entirety, is a tribute to some
skilled and passionate advocacy and the persuasive power of
conservative media — and what seems a breathtaking departure from
decades of Supreme Court jurisprudence.

It’s always hazardous to predict a Supreme Court outcome, no matter
how pointed the questioning at oral argument. This seems especially
true when the legal debate over health care has become so intensely
politicized. Pickets were marching around the Supreme Court building.
By their questioning, the four conservative Republican appointees
seemed to signal their distaste for the law, while the four liberal
Democratic appointees seemed to embrace it. That left Justice Anthony
M. Kennedy in his usual position as the swing vote, and he asked some
tough questions, at one point suggesting the government faced “a heavy
burden of justification.”

While the health care law has generated intense passions on both
sides, I don’t share them. Although it seems well established that
many Americans are burdened with costly and yet woefully ineffective
health care, if I’d been elected president, I probably would have
focused my attention on the financial crisis and the economy and moved
more slowly on health care reform. But I’m no expert on the byzantine
subject, which has confounded more than one administration, and as far
as I can tell, the legislation has had no effect on me, my family
members or friends, all of us fortunate enough to have adequate health

But limiting Congress’s power to legislate under the commerce clause
is another matter, and could have far-reaching, and unintended,
consequences beyond health care. Despite the often opaque and
convoluted arguments this week, the legal issues don’t strike me as
all that complicated. No one disputes that Congress can enact laws to
carry out powers enumerated in the Constitution or necessary and
proper to effectuate those powers. Among the enumerated powers: “To
regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.”

As the nation’s economy evolved from largely local markets to
regional, national and increasingly global ones, the Supreme Court has
taken a progressively broader view of Congressional power under the
commerce clause, even when individual freedom had to be sacrificed.
This included limiting one farmer’s ability to plant wheat during the
Depression because his production affected the overall supply and
hence had an effect on interstate commerce, and, more recently,
upholding a federal ban on homegrown marijuana even if the plant never
crossed state lines. The court has stressed that Congress needs only a
“rational basis” for concluding that economic activity might affect
interstate commerce, and even Justice Kennedy’s somewhat stricter
standard of a “tangible link to commerce” based on “empirical
demonstration” seems readily met here.

With famed hospitals like the Cleveland Clinic mounting national ad
campaigns and health insurers operating in national markets, there
would seem to be little argument that health care affects interstate
commerce and that one person’s decision to buy or not buy insurance,
just like one farmer’s decision to plant wheat, would affect a
national market. Congress has estimated that health care services and
insurance account for 17 percent of the gross domestic product and
amount to more than $2 trillion annually.

But constitutional opponents of the law have seized on the mandate
requiring most people to buy health insurance or face a penalty as an
unconstitutional infringement of individual liberty. They’ve argued
that a ban on individual activity that, magnified in the aggregate,
might affect interstate commerce (like wheat farming) is fundamentally
different from requiring someone to do something or face a penalty, as
the health care legislation does. A lower court judge ruled that
“inactivity” — the failure to buy health insurance — by its very
nature cannot affect interstate commerce.

Until this week, most scholars seemed to think this would be treated
by the justices as a distinction without any special significance.
“It’s a silly distinction,” Douglas Laycock, a University of Virginia
law professor, told me this week. Opponents of the law “have gotten an
enormous amount of mileage out of ‘inactivity,’ but that really has
nothing to do with the regulation of commerce,” he said. One hundred
professors from many of the country’s major law schools signed a
statement arguing that those seeking to overturn the law “seek to
jettison nearly two centuries of settled constitutional law” and
“there can be no serious doubt about the constitutionality” of the
insurance mandate.

But then came Justice Scalia’s now famous invocation of broccoli.
“Everybody has to buy food sooner or later, so you define the market
as food,” he said. “Therefore, everybody is in the market. Therefore,
you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed
in, asking Solicitor General Donald B. Verrilli Jr. to answer “as
succinctly as you possibly can.”

Mr. Verrilli was anything but succinct: “The class to which that
requirement applies either is or virtually is most certain to be in
that market when the timing of one’s entry into that market and what
you will need when you enter that market is uncertain. ...” He never
got around to discussing broccoli or, for that matter, any other
antioxidant. No wonder the justices were soon pondering the slippery
slope of federally mandated purchases that might also be good for us,
like health club memberships.

Mr. Verrilli was trying to make the point that a decision not to buy
broccoli doesn’t increase the price others must pay for broccoli in
the same way that a decision to forgo health insurance increases the
premiums others must pay for health insurance. But it seems to me that
a succinct answer to Justice Scalia’s question is that the commerce
clause would not limit Congress’s ability to regulate broccoli — if
members of the House and Senate were crazy enough to pass legislation
requiring all of us to eat green vegetables and if that were deemed a
rational way to regulate commerce. The same could be said of health

A lengthy Wall Street Journal editorial last week argued that “the
reality is that every decision not to buy some good or service has
some effect on the interstate market for that good or service.” That
may well be true, and Mr. Verrilli should have admitted it rather than
getting entangled in unconvincing semantics.

That doesn’t mean we would all be required to eat broccoli. Congress
has the constitutional power to pass many bills that would strike most
people as idiotic, but as a popularly elected assembly, it doesn’t.
The Supreme Court itself has said: “The principal and basic limit on
the federal commerce power is that inherent in all Congressional
action — the built-in restraints that our system provides through
state participation in federal governmental action. The political
process ensures that laws that unduly burden the states will not be
promulgated.” And absurd bills like a broccoli mandate are likely to
fail other constitutional tests.

Mr. Verrilli seems to have done a poor job at articulating the limits
to Congressional power under the commerce clause, but the Supreme
Court has already done that for him in two relatively recent cases
that, for the first time in decades, limit its scope. Both involved
federal efforts to exercise traditionally local police powers — to ban
firearms near schools and to impose civil penalties for
gender-motivated violence against women — under the guise of the
commerce clause. Justice Clarence Thomas argued that such a broad
reading would confer a federal police power over the entire nation. In
both cases, it was arguably a stretch to argue, as respective
administrations have, that carrying a gun near a school or assaulting
a woman because of her gender has anything to do with interstate

The same could no doubt be said of many activities traditionally
reserved to the states, but defenders of the health care law needn’t
address them. The Supreme Court has established limits to the commerce
cause, which is regulating activity that has little or nothing to do
with commerce. The multitrillion-dollar health care and insurance
industries surely fall well within that boundary.

It seems curious that opponents of the health care law are now looking
to the commerce clause, as opposed to the Bill of Rights, as a bulwark
of individual liberty. To the extent it ever was, that battle was lost
generations ago. To Depression-era farmers, it was no doubt an affront
to individual freedom that the federal government had the power to
tell them what crops not to plant.

Of course, the Supreme Court could reverse decades of its own
jurisprudence and fundamentally redefine and limit the power of
Congress to regulate interstate commerce. But conservatives should be
careful what they wish for. The commerce clause was a response to the
chaotic and often conflicting state regulations that hobbled the
nation under the Articles of Confederation. Its interpretation over
the ensuing two centuries has wisely reflected the growing
nationalization and globalization of economic activity and, by doing
so, has promoted economic growth.

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