Are There Limits on the Commerce Clause?

With the Supreme Court agreeing to hear the appeals regarding the constitutionality of Obamacare, the issue of whether or not there are limits on the power of the federal government under the Commerce Clause of the Constitution has been much debated this week. We have seen articles from those like dean Chemerinsky of one of the lesser law schools in the University of California system that blithely argue that Congress clearly can order the individual mandate since it is something that necessarily will effect commerce (i.e, everyone will eventually use healthcare.) Indeed, Chemerinsky sets forth the essential argument of the supporters of the law. Here is the argument in his words:

"The primary issue before the Supreme Court is whether Congress' power to regulate commerce among the states gives it the authority to require that individuals either purchase health insurance or pay a penalty. The Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.

"Thus, under current law, there are two questions: First, is Congress regulating economic activity? Second, if so, looked at in the aggregate, is there a substantial effect on interstate commerce?

"It is the former that opponents of the law, including judges who have struck it down, have focused on. They contend that people who do not wish to purchase health insurance are inactive and that Congress cannot regulate inactivity. They argue that it is unprecedented for Congress to require an economic transaction and that, if Congress can require purchasing of health insurance, there is no stopping point in terms of what Congress can force people to buy.

"The key flaw in this argument is its failure to recognize that literally everyone at some point will use the healthcare system. Children must be vaccinated to attend school. If a person contracts certain communicable diseases, doctors must report them and the government can require treatment. If a person is in a car accident, the ambulance will take him or her to the nearest emergency room and medical care will be provided.

"Therefore, even though it appears that some people are abstaining, in fact everyone is already making an "affirmative" active economic choice to purchase health insurance or to self-insure. The Affordable Care Act regulates this economic activity by imposing a penalty on those who choose to self-insure in order to create a system in which all can have access to the healthcare system."

So let's take a look at where this view can take us. Suppose that Congress decides that healthcare costs are dragging down the US economy and that the way to fix that is to reduce the number of people who use the healthcare system for the long term. As a result, Congress passes a bill that puts into effect a variant of the Chinese one-child policy. Congress says that under its power to regulate commerce, it has decided that no American may have more than one child. It mandates that for couples where both parents have at least one child, future pregnancies must be aborted. It also provides that in the event that the pregnancy is not terminated, each parent must pay a fine of $5000.

Clearly, this one-child policy meets the requirements recognized by Chemerinsky in his analysis. Each one of these new babies will surely make use of the healthcare system during his or her life. Therefore, by having the child, the parents are clearly making a "choice" to use the healthcare system in the future. Further, in the aggregate, these "choices" will have a major impact on the healthcare system and thereby interstate commerce.

I purposely chose an example that sounded more like Nazi Germany than the United States of America. But think about it for a moment. We already know from the Roe v. Wade case that abortion is legal during the first trimester of pregnancy, so there should be no limit on Congress ordering abortions, particularly if one has the choice of paying a fine instead of actually carrying out the abortion. After that, the analysis is just the same as that of Chemerinsky.

The true point is that there are limits on the power of Congress under the Commerce Clause. We have not spent over 200 years as a country saying that the Constitution provides for limited government only now to decide that what we meant all along was unlimited government. The real question is where do those limits lie? If the individual mandate is upheld, then there will be no limits at all. That is why it should be found unconstitutional.