Misreading the Commerce Clause

Misreading the Commerce Clause

Daniel Greenwood: Misreading the Commerce Clause

In my last post here, I described the ?newfound right to free-ride? implicit in Judge Roger Vinson?s decision that the health care bill is unconstitutional. What about his formal argument: that Congress?s commerce power does not extend to requiring individuals to engage in commerce? The argument is hard to take seriously enough to even debate. The Commerce Clause, of course, says no such thing. It simply says that Congress has the power to regulate commerce among the states, not that it may not do so, or that it may regulate insurance only in a way that all competent economists believe will fail.

The radical Right argues that if Congress can mandate that we pay for health care through insurance, Congress might also require us to buy Brussels sprouts. This is somewhat implausible. The Constitution creates a democracy: our basic protection against absurd Congressional enactments is politics, not the courts. It is hard to imagine a majority of our elected representatives voting for a mandate to buy Brussels sprouts without being swept out of office on a repeal platform (at least unless the recipe included deep-frying and the name changed to Freedom Sprouts).

But it is not hard to come up with more plausible mandates. For example, the federal government taxes me in order to purchase or subsidize butter, corn, soybeans, sugar, highways, and intercontinental ballistic missiles, thus mandating that I ?engage in commerce? via my government to purchase butter, soybeans, corn, sugar, highways, and intercontinental ballistic missiles?whether I agree or not. If the Commerce Clause did not empower Congress to require individuals to engage in commerce, much of American government, from Hamilton?s promotion of manufactures, to the building of the railroads and highways, to modern Medicare, would be unconstitutional. Indeed, Jack Balkin has pointed out that the 1792 Militia Act, enacted barely before the ink on the Commerce Clause had dried, required all able-bodied free white male citizens to purchase arms to serve in a militia.

Is each of these programs also beyond Congress?s Commerce Clause power? What about the completely mandatory ?engaging in commerce? of Social Security, our forced savings and disability insurance plan, or our highly successful mandatory nationalized medical insurance plan for senior citizens, Medicare? Or the regulatory systems, which every taxpayer is required to fund, that preserve the safety of foods and drugs, automobiles, or the environment? Indeed, the entire securities regulatory regime?the rules that make Wall Street work as well as it does and that determine the control of Main Street?s publicly traded corporations?is based on the Commerce Clause and mandates commercial activities, such as creating and disseminating information.

Even the 1964 Civil Rights Act is based solely on a broad understanding of commerce, allowing Congress to regulate private commercial transactions between individuals and small businesses only indirectly part of national markets. If Judge Vinson?s view of the narrowness of the Commerce Clause were accepted, a challenge to the constitutionality of the anti-discrimination laws would not be far behind.

In other words, the Constitution authorizes a democratic republic. It does not bar it.

Our current medical care finances are an ineffective and expensive conglomerate. It includes federal mandates like the requirement that hospitals treat emergencies; the direct and indirect federal and state taxation that pays for Medicare, Medicaid, the regulatory system that makes the medical insurance and pharmaceutical production systems economically viable, and large parts of most medical research and education; hidden cross-subsidies making insured and solvent patients pay for insolvent uninsured ones; tax subsidies that help fund employer-provided medical insurance; and government-created monopolies (patents) that we use to finance pharmaceutical research (along with untold private waste).

Most of this was created by the federal government or companies acting in markets that depend on federal law. Nothing in the few words of the Commerce Clause means that we are without the power to clean up the mess we have made.