Wednesday, March 23, 2011

Can Congress Regulate Inactivity?

But men may construe things after their fashion,
Clean from the purpose of the things themselves.

Cicero, from Shakespeare's Julius Caesar

President Obama's health care bill was passed one year ago today, but as most observers know, its fate is still in question. While the bill has had the necessary Legislative and Executive support, the question still to be answered will come from the Judiciary. That question is, is this legislation in accordance with the Constitution? The various benefits and costs of the bill appropriately belong to the Legislative branch and should be discussed in any effort to repeal the bill, but when discussing the legality of the measure, all such issues become moot. The only question at hand is, does the federal government have the authority to pass such a bill?

It is my belief that the bill is unconstitutional as Congress lacks the power to regulate inactivity. The act requires individuals to purchase "appropriate" health care coverage; failure to do so leads to fines or jail time up to five years.

The courts in this nation are generally bound by precedent, meaning current decisions are not supposed to radically differ from principles established in prior cases. This prevents chaos from overtaking our system of hundreds of courts, providing a final answer to legal questions. It is not iron clad, however, nor should it be. Poorly decided cases should be overturned, as should any case decided against the Constitution in the past.

Defenders of this act say the Commerce Clause and the Necessary and Proper Clause in Article 1, Section 8 provide authority for Congress to mandate each citizen buy health care. These clauses read:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;


To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Ironically, these were among the least and most controversial aspects of the Constitutional Convention. The commerce clause was not a source of much contention, as prior to the adoption of the Constitution states created their own money and imposed tariffs on one another. The confusion of this system created a wide acceptance of Congress to regulate trade to prevent such friction in trade across state lines and to increase the reliability of American currency abroad. Giving Congress the power to pass all laws "necessary and proper" was far more controversial, however, given the obvious propensity of lawmakers to declare anything they do necessary and proper.

Currently, these issues concerning the health care bill are passing through different courts. Decisions have been handed down supporting and opposing the constitutionality of the bill. Probably the two most representative cases are Judge Kessler's opinion in support and Judge Vinson's opinion in opposition. Both cases boil down to the same question: may Congress regulate individuals who are not actively participating in trade?

Judge Kessler, in support of the bill, says:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. [pg 45]

Judge Vinson, in opposition, sees things differently:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. [pg 42]

Both sides note that there is no direct precedence concerning regulating inactivity (Judge Vinson points to this as evidence that Congress has never understood the Commerce Clause to include such a power). There are, however, past decisions concerning the Commerce Clause that can give us a clue as to what "commerce" properly means.

Chief Justice John Marshall was one of the greatest and most prolific judges to serve on the Supreme Court; he is also known for expanding the power of the federal government, pursuing a fairly loose construction on the enumerated powers. However, he makes it perfectly clear in McColloch v. Maryland that the federal government is indeed limited to those enumerated powers.

This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. [pg 405]
The problem, of course, is in determining the extent of those powers. Congress may do more than is specifically said in the Constitution, so long as those new powers are necessary and proper to the use of an enumerated power. Marshall takes a broad view on what Congress may do to further enumerated powers (unlike Thomas Jefferson, who believed any act of Congress had to be absolutely necessary rather than expedient towards achieving an enumerated power).

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. [pg 421]

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. [pg 423]

The question now is what is meant by the commerce clause and whether the individual mandate is in pursuance of an enumerated power. Marshall gives us a definition in the case of Gibbons v. Ogden:

Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. [pg189]

Intercourse is not a mental act within a single skull; it is the exchange of goods and services between different owners. This, however, is the most damning part:

They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. [pg 203]

Commerce was understood to be an activity between people by Chief Justice Marshall, who as I said was a Federalist responsible for expanding the powers of the federal government. It would never have occurred to him, as it did Judge Kessler, that merely thinking about anything that could remotely be economic constitutes trade which Congress may regulate.

Unfortunately, the Supreme Court was strong armed into supporting President Franklin Roosevelt's New Deal policies. The meaning of commerce was greatly expanded, so that the actions of a single person could be regulated by Congress, as was decided by Wickard v. Filburn. I believe the Court erred in this decision, but for the sake of argument I will grant it, just to prove that even this decision did not push the Commerce Clause far enough to encompass this health care act. As the Court noted:

For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. [pg 121]

The Court admits that the Commerce Clause had been viewed as a check on the states from preventing trade, rather than as a tool for expanding Federal intervention into our lives. This new power, by their own admission, was a radical departure from the understanding of the judiciary for over a century. But even here, the Court required an individual to be participating in some activity before Congress could regulate.

Granting Congress the power to regulate inactivity, where no goods or services are even produced, much less exchanged, is to hand carte blanche to the federal government. There is not a moment of our lives that theoretically could not be used to influence interstate trade; that is enough for Congress to be able to regulate us in whatever manner they desire. Granting this conception of the Commerce Clause would eliminate the fundamental principle of limited government from our current system. The American people did not grant this power to Congress at the founding of our Republic, it has never been understood to be otherwise up until this point, and Congress may not assume such power to itself without an amendment to the Constitution. As no such amendment has been passed, the judiciary absolutely must uphold the provisions of the contract between the People and the Government limiting Congress' ability to regulate trade.

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