As the saying goes, the road to hell is paved with good intentions. The sayers have neglected to mention that the pavers are government employees, and that those “good” intentions are funded via hell’s most egregious abuse, the public treasury.
No area of American life displays that abuse more abundantly than the progressive tyranny that has grown up around the Commerce Clause of the U.S. Constitution (Article 1, Section 8, Clause 3). The Article empowers Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The abuse has grown most particularly in regard to commerce “among the several States.” Throughout American history, Congress has employed this Clause gradually to expand Federal control over every area of life. For the most part, the Courts have approved.
Interstate Commerce has come to the fore most recently in relation to Obama’s Health Care overhaul. Twenty states have now challenged the law’s Constitutionality in regard to its mandate that individuals buy health insurance or face a fine. Does Congress have the power to force individuals to engage in commerce? Does the Commerce Clause provide this power?
Liberals believe that Supreme Court precedent says, “Yes.” Orlando Sentinel columnist Mike Thomas relates why:
“The federal government can use interstate commerce to improve society, or hold up the price of wheat or give health care,” says Bruce Jacob, a dean emeritus at the Stetson University College of Law. “Based on the law as it now exists, I don’t think this challenge is going to win.”
But Thomas fears that the Court may ignore precedent, because the “current makeup of the U.S. Supreme Court” apparently favors conservative activism:
But the way the law exists now may not be how it exists if the current U.S. Supreme Court gets this case. The court has been throwing out precedents on everything from partial-birth abortion to the McCain-Feingold campaign-finance law.
Given its antipathy to increased federal power, there’s no reason to think the court would hold current interpretations of the Commerce Clause sacrosanct.
May God forgive those of us who refuse to hold one branch of the Federal government’s decisions as “sacrosanct” (sacrosanct, adj.— 1. sacred, holy, inviolable 2. not to be trespassed upon) over against the others’, or the states’, or my own personal conclusions for that matter, or in general in any way.
Thomas’ lament exposes once again how the liberal’s real plan of government is judicial tyranny. His main concern is about which ideology controls the Supreme Court; this, in expectation that the controlling party will indeed interpret the Constitution to fit their agenda. In this view, the Constitution is not the rule of justice, the Justices are the rulers of the Constitution. In this view, the Constitution means nothing without the Court.
This arrangement has reigned really since Marshall, and has been abused throughout American history; but it has seen its most prominent abuses since the so-called “Constitutional Revolution of 1937” effected under FDR’s New Deal. After threatening to pack the Court with additional liberal justices in order to get his legislation approved, key Justices caved and allowed vast expansion of Federal control over commerce via the Commerce Clause. This overturned the previous 100 or so years of judicial precedent.
Now the liberals’ and statists’ main argument is the fear that the Court may “overturn” the most recent 75 years of precedent (since 1937).
Perhaps you can see the irony.
First, the overturning of the overturning of precedent is simply a return to something closer to the way it was meant to be in the first place. Second, as for the overturning of precedent, well, the liberals themselves set the precedent for doing so!
This is the liberals’ ultimate problem: those who live by change, die by change.
They must constantly fear the Revolution of the Revolution. And enough revolution is enough to make one dizzy. Perhaps that’s why liberals’ heads are always spinning, and why they think the world revolves around them.
There is, however, a glimmer of hope in recent times. A 1995 Supreme Court case stopped the onward march of progressivism in Interstate Commerce; this is the change in momentum need to start revolving the balance of power back to what it should be. The case was United States v. Lopez (1995), and I have yet to see it discussed in reference to the Health Care bill’s reliance on the Commerce Clause. I believe the Lopez case was a conscious effort to halt progressive tyranny and return to something like Constitutional soundness. Why do I say this?
I say this because the case purposefully reviews the history of how the judicial precedent has gradually moved in one direction: expansion of the Federal government’s power. The decision bucks this trend openly in observation that the Federal government has gained and will continue to gain too much power over the states. Before we appreciate the 1995 decision and see its portents for the upcoming Health Care decision, let us review its review of the progress into tyranny:
It was Marshall who first vehemently upheld Congress’ right to regulate Interstate Commerce. In 1824 he decided Gibbons v. Ogden, which defined the power to regulate as the power “to prescribe the rule by which commerce is to be governed.” But it also recognized important limits on Congress’ specifically enumerated power, for “The enumeration presupposes something not enumerated.” In other words, the very fact that the Constitution designates a particular power to Congress, means automatically that the Constitution intended specifically to forbid what it does not designate. This undesignated power, “if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.” Thus, if anything is sacrosanct, it is the States’ rights, not the judicial decisions. This, of course, is consistent with the Tenth Amendment.
The Highway Down
The U.S. v. Lopez decision continues with the story of how the Supreme Court and Congress progressively ignored and trampled the Tenth Amendment. Here is an edited account [I have removed all legal codes for ease of reading]:
For nearly a century thereafter [after Marshall’s 1824 decision], the Court’s Commerce Clause decisions dealt but rarely with the extent of Congress’ power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce.… Under this line of precedent, the Court held that certain categories of activity such as “production,” “manufacturing,” and “mining” were within the province of state governments, and thus were beyond the power of Congress under the Commerce Clause.…
In 1887, Congress enacted the Interstate Commerce Act, and in 1890, Congress enacted the Sherman Antitrust Act, as amended. These laws ushered in a new era of federal regulation under the commerce power. When cases involving these laws first reached this Court, we imported from our negative Commerce Clause cases the approach that Congress could not regulate activities such as “production,” “manufacturing,” and “mining.” [Emphasis added.]
In other words, even though this legislation increased tyranny, it still formally retained a view of limits upon Congress’ power. But it was the first step toward serious compromise:
Simultaneously, however, the Court held that, where the interstate and intrastate aspects of commerce were so mingled together that full regulation of interstate commerce required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation.
This arrangement lasted until FDR’s New Deal legislation tried to enforce labor and wage laws. The Courts at first struck these down:
In A. L. A. Schecter Poultry Corp. v. United States (1935), the Court struck down regulations that fixed the hours and wages of individuals employed by an intrastate business because the activity being regulated related to interstate commerce only indirectly.… Activities that affected interstate commerce directly were within Congress’ power; activities that affected interstate commerce indirectly were beyond Congress’ reach.… The justification for this formal distinction was rooted in the fear that otherwise “there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.”
This decision was a death blow to FDR’s New Deal legislation, for the time. FDR and the progressive tyrants had no use for “limit to the federal power,” and so this is when the great pressure on the Courts began. Sadly, the same Court that rejected the Deal as unconstitutional in 1935, had melted enough under pressure by 1937 to allow for radical reinterpretation:
Two years later, in the watershed case of NLRB v. Jones & Laughlin Steel Corp. (1937), the Court upheld the National Labor Relations Act against a Commerce Clause challenge, and in the process, departed from the distinction between “direct” and “indirect” effects on interstate commerce.… The Court held that intrastate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” are within Congress’ power to regulate.… [Emphasis added.]
Then came the flood:
In United States v. Darby (1941), the Court upheld the Fair Labor Standards Act, stating:
“The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.”…
See also United States v. Wrightwood Dairy Co. (1942) (the commerce power “extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power”).
In Wickard v. Filburn, the Court upheld the application of amendments to the Agricultural Adjustment Act of 1938 to the production and consumption of home-grown wheat. The Wickard Court explicitly rejected earlier distinctions between direct and indirect effects on interstate commerce, stating:
“[E]ven if appellee’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, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”
[In other words, the New Deal Court completely ignored judicial precedent.]
The Wickard Court emphasized that although Filburn’s own contribution to the demand for wheat may have been trivial by itself, that was not “enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.
The Exit Ramp
So far, it seems, the Commerce Clause has provided us the avenue to tyranny, the Highway to Hell. Well, here’s the Exit Ramp:
The 1995 Lopez decision notes that despite all of this increase of tyranny in the area of Interstate Commerce, there still must remain a line drawn somewhere between the power enumerated to Congress and those forbidden to it and thus reserved for the states:
But even these modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits.
In this 1995 case, a young man was arrested for possession of a gun at school. He was eventually charged under the federal Gun-Free School Zones Act of 1990. This Act depended upon Congress’ claim to be able to regulate local school districts as education “business” under the Commerce Clause. The young man argued in Court that the Act was unconstitutional. After a couple appeals the case ended up at the Supreme Court which ruled against Congress.
The decision outlines the progressive tyranny above, and states the explicit concern to stop the progression. In refuting the government’s arguments in favor of regulating education and criminal behavior as “commerce,” the Court stated:
The Government admits, under its “costs of crime” reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents … it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.
This attitude continues in the conclusion of the decision:
To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do. [Emphases added.]
If this is not a putting down of the foot, I don’t know what is.
The question will be whether this firmness will continue into the present case of Health care. Thomas above quotes the liberal professor who thinks it will not: “Based on the law as it now exists, I don’t think this challenge is going to win.” But I don’t think he has considered the impact of U.S. v. Lopez (1995). The impact comes in the fact that the government’s arguments in each case are very similar, and rest on very similar precedents.
For example, in the Lopez case, the government argued thusly (as summarized by the decision itself):
The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population.…
Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe.…
The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being.
Thus the primary economic reason the government could come up with in order to subsume local school safety under “Commerce” was the potential for increased insurance costs. Now, how might a ruling against such an argument pertain to the current Health Care law which mandates the purchase of insurance as a means of reducing insurance cost, among other things?
Just note, for example, how the liberal forms his argument:
The Federalist Society argues that in expanding the clause to health care, “Congress would have to explain how not doing something—not buying insurance and not seeking health-care service—implicated interstate commerce.”
Here is how: The people least inclined to buy health insurance are younger people who think they don’t need it. When they do, they can wind up in emergency rooms, where they often can’t afford the bill. The hospitals and doctors then must recoup their losses by charging everybody else more.
Mandating insurance drives down health-care costs for everybody.… Without the mandate, people simply could go without insurance until they get sick. Then they buy a policy, raising the cost for everybody else in the system.
It’s even funnier that this liberal has positioned his argument as a refutation of the conservative position. In reality, it is his argument that has already been refuted by the Supreme Court. It is he (and his professor) who is ignoring the “law as it exists now.” This is why he continues to look back to tyrannical FDR-era decisions in order to make his arguments: “If the government can limit how much wheat a farmer can grow to control costs, it can require people to buy health insurance to control costs.”
Firstly, this is not necessarily an accurate comparison. Is the regulation of the amount of wheat one can harvest the same as forcing someone to buy something they would not have purchased at all? The Courts will require sharper distinctions in this regard. In fact, the Lopez decision has already established this: “Even Wickard [the wheath case], which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not [i.e., alleged possible increase in insurance costs].”
Secondly, even were we to grant the analogy between wheat regulation and health care, who’s to say that the former declaration—being part of the radical progressivism of the New Deal—is right in itself? Why would we not rather, for freedom’s sake, state the scenario in the reverse: The government was wrong to limit how much wheat a farmer can grow to control costs, therefore it would be wrong to require people to buy health insurance to control costs? This is the revolution of the revolution.
Fear the revolution of the revolution.
It looks very likely, judging by the most recent precedent, that the Court will return to a pre-radical interpretation of the Constitution in regard to Interstate Commerce. If it applies the same logic to the Health Care law as it did to the Lopez case, I don’t see how the Obamacare mandate will survive.
Construction Zone Ahead
This does not mean that the Commerce Clause is still not greatly abused. We have a long way to go to return from our progressive trip down the interstate highway to hell. And we have a lot of reconstruction ahead.
A long way it is, as Gabriel Kolko’s book The Triumph of Conservatism (by “Conservatism” he means big-business-big-government partnership) makes clear: It was the Rockefellers, Carnegies, Morgans, etc., who used Interstate Commerce regulation to secure fat business and monopolies at the expense of tax payers and small businesses, all in the name of trust-busting, stabilization, and controlling costs. During this era, Kolko puts it,
The federal government, rather than being a source of negative opposition, always represented a potential source of economic gain. The railroads, of course, had used the federal and local governments for subsidies and land grants. But various other industries appreciated the desirability of proper tariffs, direct subsidies in a few instances, government-owned natural resources, or monopolistic privileges possible in certain federal charters or regulations.…
It was perfectly logical that industrialists who had spent years attempting to solve their economic problems by centralization should have been willing to resort to political centralization as well.1
This is exactly what they did. Beginning with the creation of the Interstate Commerce Commission (ICC) in 1887 (as the Lopez case also noted above), the big-business magnates used government regulation to squeeze out competition. (It was, no doubt, a sin of Commission.)
And once the bureaucracies were in place, it made little difference who took office. Thus, when the conservative Democrat Grover Cleveland took office, Andrew Carnegie’s partner Henry Clay Frick glossed, “I am very sorry for President Harrison… but I cannot see that our interests are going to be affected one way or the other by the change in administration.”2
The same situation exists today, as big-pharma, big-med, and big-insurance stand to gain tremendously from big-government’s newly mandated health insurance.
But the ICC was abolished (also, oddly, in 1995). It was steered into oblivion largely by an obscure theonomist truck driver who worked his way up into the system and then leveraged Bush Senior’s “dereg” agenda to pull the plugs on the Commission. The last stages were completed later.
This means, by the way, that one lone Constitutional radical like you can have an effect. Imagine what 100,000, or a million can accomplish.
In the meantime, could it be that legal precedent has already doomed the Obamacare power play? It truly appears to me that the works are in place. This is true from the 1995 Lopez case alone.
If the Justices just intend to stick with the Constitution, of course, there’s no doubt the precedent is in place. And that’s not just one more good intention.