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March 28th, 2010

Does the Constitution Stop Obamacare?

obamaWritten by Nathan Tucker

When asked that question last fall, House Speaker Nancy Pelosi was temporarily caught of guard, finally sputtering, “Are you serious?” A few seconds later the same response, “Are you serious?” She then quickly turned to another reporter without further comment.

The thought that the Constitution actually limited the power of Congress to enact legislation was foreign to the Democratic House leader. The Constitution’s Framers, however, intended for the federal government to be one of limited powers that were specifically enumerated in the text of the document.

James Madison, writing in Federalist No. 39, wrote that, “The proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

If the federal government is one of enumerated powers, than the power to regulate health care must be one of the powers specifically given to it in the Constitution. Out of the 17 named powers given to Congress in Section 8 of Article 1, however, none of them mentions anything about heath care, insurance, doctors, medical treatment, or anything approaching an enumerated power that would allow Congress to legislate our health.

Then how is it that Democrats can claim the Constitution permits their health care legislation? Democrats argue that the Commerce Clause gives Congress the power to regulate the health care industry. The Constitution does in fact specifically give Congress the power “to regulate commerce with foreign nations, among the several states, and with the Indian tribes.”

The Clause, however, was simply meant to prevent trade wars between the states, something that was a common occurrence under the Articles of Confederation. The inability of the Continental Congress to resolve trade disputes among the various states and with foreign nations was one of the leading reasons the states called for a new federal government.

Originally understood, the Commerce Clause was intended to create a “free trade zone” throughout America, only giving Congress the power to strike down state laws that discriminated against the buying, selling, and transportation of out-of-state goods.

Madison, in 1832, wrote that the Clause was “a necessary control on the conduct of some of the importing States towards their non-importing neighbors.” Never once, in the Federalist Papers or the debates during the Constitution’s ratification, did anyone suggest that the Commerce Clause was anything more than the power to eliminate trade barriers among the states.

Ever looking to expand its power, Congress, with the acquiescence of the Supreme Court, has long ago seized on the Clause as its authority to regulate pretty much every detail of our lives. The Supreme Court has gone so far as to uphold federal legislation that prohibited local, non-economic activity such as growing wheat or marijuana for personal consumption under the absurd theory that, since the home-grown product is used instead of that which is transported across state lines, it has an effect on interstate commerce. Such a theory, however, transforms the federal government into one with unlimited powers.

But the health care legislation goes even further than what the Court has previously upheld by requiring an individual person to engage in economic transaction with a private company or face a fine. That is an unprecedented and unconstitutional power grab by Congress that, if upheld, would leave no check on Congress’ power. The concept of federalism and limited government would be dead.

It is time for the Supreme Court to once again hold that the Constitution imposes restrictions on Congress and to close the Commerce Clause expressway by which the federal government has become one of infinite powers rather than finite authority.

Photo by Dave Davidson

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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