This week has been an extraordinary week for constitutional scholars. This week, people of all political stripes heard constitutional arguments from conservatives like Justices Scalia and Alito to liberals like Justices Ginsburg and Breyer.
They heard arguments made by Paul Clement, who represented the 26 states. They heard arguments made by Solicitor General Verilli. Some of the best arguments made in the case, though, were part of the Legal Landmark Foundation’s Amicus brief to the court. LLF’s brief is a history lesson on the Commerce Clause. Here’s part of LLF’s brief:
New York, New Jersey and Connecticut were on the brink of civil war over New York’s refusal to allow any ships or other navigational transports access to the state’s ports or harbors other than those owned by New York’s designees. The result was escalating transport fees to neighboring states, confiscation of unlicensed vessels and dangerously heightened tensions between New York and its neighboring states. Gibbons, 22 U.S. (9 Wheat.) at 184-185.
A national crisis, if not civil war, was averted by the Supreme Court’s application of the Commerce Clause, which was straightforward, logical, and obvious:
All America understands, and has uniformly understood, the word “commerce” to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it.
The Convention must have used the word in that sense; because all have understood it in that sense, and the attempt to restrict it comes too late.
In other words, the Commerce Clause was codified into the Constitution to give the federal government the authority to resolve trade disputes between the sovereign states. That’s a far cry from giving the federal government the authority to tell people or corporations that they must engage in specific types of commerce of Washington’s choosing.
Here’s another brilliant constitutional argument against Obamacare:
The federal government’s flagship case, Wickard v. Filburn, 311 U.S. 111 (1942) has nothing in common with the PPACA’s individual mandate. In fact, it underscores its unconstitutionality. In that case, the government did not mandate a farmer to grow wheat. It sought to regulate the wheat the farmer, by his own free will, chose to grow. Moreover, the government did not compel the consumer to purchase wheat, whereas in the instant case it compels the consumer to purchase insurance.
It’s impossible not to notice the difference between the ruling in Wickard v. Filburn and the case that the Obama administration is attempting to make supporting Obamacare.
LLF’s brief didn’t just demolish the Obama administration’s argument that the Necessary and Proper Clause gave the federal government the authority to impose Obamacare on people. It, too, taught an important history lesson:
The federal government also invokes the Necessary and Proper Clause to defend what is indeed an unprecedented national police power. The Necessary and Proper Clause, however, does not create any additional congressional power, nor does it expand any enumerated power. See Joseph Story, A Familiar Exposition of the Constitution of the United States (Washington, D.C.: Regnery, 1986), Section 208. The individual mandate is not “a discrete and narrow exercise of authority over a small class of persons
already subject to…federal power.” United States v. Comstock, 130 S.Ct. 1949, 1968 (2010) (Kennedy, J., concurring). Accordingly, the Necessary and Proper Clause does not justify the individual mandate as Congress never has had the authority to compel private parties to engage in private economic activity based solely on the fact of living.
LLF’s brief highlights the Obama administration’s attempt to stretch the Commerce Clause and the Necessary and Proper Clause beyond anything the Founding Fathers would’ve recognized.
LLF’s research into these clauses is detailed and on point.
Here’s the text of the Necessary and Proper Clause:
The Congress shall have Power – 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.
It’s apparent that the linchpin to this clause is whether the federal government was vested with the authority to impose its will on people or if there are limits on the federal government’s ability to impose its will on sovereign states and sovereign individuals.
The Ninth and Tenth Amendments say there are limits. Here’s the text of the Ninth Amendment:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Here’s the text of the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The point is that there’s a purpose behind these clauses and amendments. Each should be seen as applying to specific situations, not as catch-all clauses to be used to justify the federal government’s authority over the nation’s activities.
Thanks to this week’s Supreme Court hearings and LLF’s brief, average citizens are getting taught a great history lesson on the Constitution. How lucky are we for that?