Determining the Constitutionality of Obama-Care through Wheat, Pot and Commerce Clause
James McHenry reportedly observed a woman asking Ben Franklin at the close of the 1787 Constitutional Congress, “Well Doctor, what have we got, a Republic or a Monarchy.” To which Franklin replied, “A Republic, if you can keep it.”
The Patient Protection and Affordable Care Act (Obama-Care) was passed in 2010 as a sweeping overhaul of the health care system in the US. Currently, twenty-six State’s Attorneys General have filed suit in federal Court claiming the law is unconstitutional citing the provision mandating the purchase of health insurance by all individuals. The Supreme Court will likely hear this case putting the Commerce Clause and Ben Franklin’s forewarning front and center.
The Commerce clause is found in Article I Section 8 of the U.S. Constitution and is just 16 words and two commas. Congress Shall have the Power…
”To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
On the surface the commerce clause appears fairly innocuous as just another enumerated power granted to Congress. But in reality, the Commerce Clause is cited by Congress as justification for passing intrusive laws. Of course, Congress does what it is allowed to do by precedent set by the Supreme Court.
With the Supreme Court’s decision in Kidd v. Pearson (1888) 128 U.S. 1, 21 Justice Lamar noted that it is a matter of public history that the object of vesting in congress the power to regulate commerce…among the several states was to insure uniformity for regulation against conflicting discriminatory state legislation. That is to say, originally, regulating commerce meant regulating trade to keep the states from imposing trade barriers with one another and causing war.
The first case the Supreme Court heard concerning the Commerce Clause was Gibbons v Ogden where the Court struck down a New York law that created a shipping monopoly. Chief Justice Marshall wrote a narrow opinion that focused on the definition of “among” and “commerce” and warned of the reach of federal power concerning commerce that is not among the states, such power, he noted, would be inconvenient, and is certainly unnecessary. Gibbons v. Ogden (1824) 22 U.S. 1, 194.
Court Packing and New Deal Cases
From 1894 until the 1930’s the Commerce Clause was continually restrained in court rulings. President F.D.R. became increasingly annoyed by the Court striking down New Deal legislation and came up with an idea of packing the court in his favor by adding one justice for every Supreme Court justice over the age of seventy; up to a total of six (including lower courts). With the threat of losing judicial power combined with retiring judges, the Supreme Court allowed the New Deal legislation to flourish.
In the “sick chicken” case A.L.A. Schechter Poultry Corp. v. U.S. (1935) 295 U.S. 495 the Court struck down regulations that were interstate related because the activity was indirectly related to commerce as opposed to directly. But with N.L.R.B v. Jones & Laughlin Steel Corp. (1937) 301 U.S. 1, 37, the Court for the first time ruled that Congress could regulate activity that was purely intrastate if they had a “substantial effect” on interstate commerce. The power given appeared significant at the time, and then enters, Roscoe Filburn.
Aggregation Principle and Modern interpretation
Roscoe Filburn grew and consumed his own wheat and was fined for exceeding the quota allowed by the federal Agricultural Adjustment Act of 1938. Filburn was not engaging in interstate commerce, and in fact the Supreme Court took the position that Filburn’s wheat was not intended in any part for commerce but wholly for consumption on the farm. Wickard v. Filburn (1942) 317 U.S. 111, 118.
The Court held that Congress had the power to regulate based on whether the activity has a “substantial economic effect” on interstate commerce. Jackson, writing for the Court expanded on past cases in creating the Aggregation Principle. [E]ven if appelle’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce…irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.” Wickard v. Filburn supra, 319 US 111, 125.
From 1937 until 1995, no legislation was struck down as exceeding the scope of Congress’ power to regulate via the commerce clause and no legislation has been more relied on for establishing Congress’ power than Wickard v. Filburn. The Court subsequently struck down federal legislation in U.S. v. Lopez, (1995) 514 U.S. 549 (gun-free school zone act) and U.S. v. Morrison, (2000) 529 U.S. 598 (violence against women act) as the regulations did not involve commerce, but without overturning Wickard v. Filburn.
In 1996 California legalized the use of Marijuana for serious medical conditions, but this violated the Federal Drug Control act of 1970. Gonzales v. Raich (2005) 545 U.S. 1 became the illegal version of Wickard v. Filburn supra, 317 U.S. 111 and reaffirmed rather than overturned it by stating that even if the activity is illegal, it makes no difference.
Conclusion
The cases mentioned will be heavily relied upon in arguing Obama-Care before the Supreme Court. But in reality the individual mandate goes beyond these cases. Wickard v. Filburn and Raich v. Gonzales concerned regulating individuals that were engaging in an activity (whether the activity had a substantial effect on interstate commerce) and those individuals could have stopped the activity, thereby avoiding the penalty. With Obama-Care, an individual is penalized if they do not engage in the activity. In essence, the regulation here is about inactivity.
Does Congress have the power to regulate inactivity as envisioned with the creation of the commerce clause? It would be difficult to imagine that a country that began in part due to regulation of tea by the British would create a government that has the power to force an individual to now buy that very tea.
Tyler Janke
March 14, 2011
Law School Writing Competition - 2nd Runner up Award!
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Side notes and continued arguments -
Comparing with Driving Insurance -
As an addendum, the argument that the federal government and Obama-care proponents make that requiring insurance is similar to requiring drivers insurance, has some flaws. To require a driver to have insurance is predicated on the fact that the driver is given the privilege of driving a car and therefore the requirement of insurance is allowed. Here, with Obama-Care, each individual is being required to buy insurance predicated on the fact that they are alive. Living is not a privilege but a right and the right of living now comes with the demand to buy insurance.
Is it a Tax?
If the feds decide to pursue the tact that Obama-care is actually a tax, then they have a few problems with that direction too. First, Obama promised not to raise taxes and this would go against that pledge. Second, this is not an income tax (which is constitutional) but instead a direct tax. Direct taxes must be apportioned by population according to the Constitution and this tax is not apportioned in that manner.
Way back in the day (the "Olden" days as my kids will soon refer to it) I had a dream of racing my bike. That dream came true and I spent several years racing at a high level. The perks to racing for a Professional team is the goodies and free shwag that you get in exchange for representing the sponsors and killing yourself on the bike. Clothing, helmets, shoes, more socks than you care to wear through in 10 years (I'm still working on some), bikes wheels and nutrition supplies are all part of the package.
names of a cat and dog that were often seen along this route. The decal on my bike had a small drawing of these two animals. This name became legendary in cycling and soon a bike shop was opened on the Hill in Boulder bearing the name. The shop was owned by none other than Davis Phinney and Ron Kiefel. When the shop closed down in the late 90's, the name was purchased by Rainbow Cyclecraft and they began making a few bikes hoping the name would lead to some economic payoffs. I have no clue if they made money on the bikes, but nevertheless the Oilme Professional Cycling team received the benefit of riding their machines for a year or two.
The tour isn't always seen by Americans as a tough man sport. I was just told the other night that in fact cycling was not much of a boy sport even. Well, I prefer to not even engage people like that in conversation about my beloved cycling as they surely won't get the romantic flavor of seeing the brutal climbs of the grand tours or the rugged cobbles of the classics. More stories can be told of near death experiences on the bike through cold and heat or simply overcoming the will to stop when the mind of a mere mortal would have got off the bike many miles or days previous. Wrecks at speeds of 40mph are not unheard of and yet cyclists put themselves into these situations day after day.
This years tour is not short on the already expanding details of a few riders fight to keep riding. Frank Schleck broke his clavicle in three places on stage 3, Cadel rode stage 9 with the yellow jersey and a broken arm and many more are suffering without much fanfare. Garmin cyclist David Millar rode today's stage by himself battling to make the time cut while nursing injuries and some illness. Read about it here.
After 9 stages of the 2010 Tour de France, the field has been ripped apart by crashes and the Alps. The 8th stage brought down Lance Armstrong after 3 crashes and a loss of over 10 minutes. One day of horrible luck in the Tour did what other cyclists couldn't do for seven straight years. The 9th stage started with Cadel Evans of Australia in the yellow jersey but by the end of the day Cadel lost over 8 minutes to Andy Schleck and Alberto Contador. It was also revealed that Evans had suffered a fractured arm on stage 8. Cadel battled to the finish and showed a lot of emotion with teammate Stever Morabito after they crossed the line. 
So I got the new Iphone 4 and just in time for the Tour de France. Since I don't get to work until just before the stage usually ends, I need my Tour fix from waking up till I get to work. So, luckily the Tour is streaming live on my phone! Versus has a cool application where you can stream the Tour with Phil and Paul - direct from Versus TV. Also, the stages are available to replay at any point.
The great thing is that I am able to hook the sound to my car (playing over my stereo system) and then plop the phone on the dash and watch the tour while I drive into work. Dangerous? Not really. My Land Rover has a nice spot by the in-dash GPS where the phone sits nicely and I mostly just listen as I drive. 
The cycling season is under way. Here is a retro picture of Bernard Hinault (The Badger) taking it to some protestors. A young Phil Anderson looks on. Looks like Hinault would be a good guy to help break up a SEIU rally/protest.