Monday, March 22, 2010

Commerce Clause and Chaos

The passage of ObamaCare has brought joy to those on the Left who seek to have equality by pulling all others down to the lowest common denominator. The basis for this intrusive act by the government is said to be the all powerful "commerce clause" (Article I, Section 8, Clause 3) of the US Constitution, giving the Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". The clause didn't pack a lot of power until the Depression when the FDR administration determined to artificially keep wheat prices high. Without geting into some esoterica about the "dormant commerce clause" or other issues of limited application, suffice it to say, that the Supreme Court determined in Willard v. Filburn that any activity that exerts a substantial economic effect on interstate commerce could be regulated. While Filburn's growing wheat to feed his chickens meant that he wasn't buying wheat on the open market (and thereby supporting government mandated prices) was only of small impact, the reasoning was basically that if everyone did it, the impact would be large.
I am sure you are asking how a wheat farmer's horticulture has anything to do with ObamaCare. First, ObamaCare requires mandatory purchase of health insurance by everyone in order to subsidize those who will need medical care. And what is the basis for this "substantial impact on interstate commerce?" Apparently, it's breathing. If you are consuming air, then you are somehow having a substantial impact on interstate commerce?
The real question is, what is now the minimal activity that a citizen can do to avoid triggering the commerce clause in their life? If there is nothing that cannot be regulated, then why do we have the 10th Amendment?
The real fun for those of us who prefer chaos to organized governmental activity, it is quite possible that the US Supreme Court could rein in the commerce clause to such an extent that the powers that Congress has been usurping will finally be removed.
And I can hardly wait.

1 comment:

Dave Budge said...

Steve, I don't think the government's defense will be the Commerce Clause but, rather, the power to tax (wherever we find it in the constitution.) The penalty for non-compliance with the mandate is a tax that is otherwise notated as a penalty. So the logic is that the government can levy a tax on an individual who decides not to participate in health insurance as an offset to the expected costs on the system when they actually need health care services.

I'm surprised that the legislation didn't do the reverse and offer a standard deduction for buying insurance that is equal to the proposed penalty. If they had done this there would be much less of a constitutional question.