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?

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5 Responses to “Mark Levin, Landmark Legal Foundation, give Obama administration ConLaw lesson”

  • eric z says:

    How exactly does any of that cut against single payer, which is what most informed people want.

    The VA clinic that opened in Ramsey is proof on the ground. Socialized medicine works. And it should not merely work for veterans. It should be instituted to work for every citizen.

    The 71 year olds wanting further extended coverage for their heart transplants can buy extended coverage beyond base coverage, but not one single human needs to go without coverage. Not one single small business needs to fund expensive employee coverage.

    All this debate is Republican and Democrat smoke and mirrors to distract from the clear and simple – and clearly Constitutional answer. Cover everyone. Single payer. Pay for it out of general funds. Tax the rich for a change to assure enough income, while scaling down the aggressiveness of the military machine.

    What’s the problem? Lack of will, people being propagandized and lied to, but over time that will be defeated as the inhumane thing it is.

  • Gary Gross says:

    Single-payer advocates don’t think highly of single-payers. I wrote about it here:

    Although there are some advantages and some disadvantages to each system, universal health care confers the greatest number of advantages. They include:

    1. Increased access to preventive care and the ability of government to purchase prescription medications in bulk would also help drive down health care costs. However, the corresponding drop in revenue for pharmaceutical companies could lead to a reduction in overall research and development, slowing down technological advancement.
    2. There would be a removal of profit-motive in health care. The driving force behind the health industry would be patient care and not profit maximization.

    That’s what an advocate of single-payer said. Do you really want a “corresponding drop in revenue for pharmaceutical companies” that would “lad to a reduction in overall research and development”? Do you seriously want profits removed? If you do, nobody will provide the service.

  • Gary Gross says:

    Single-payer isn’t constitutional. As Pelosi is finding out, & as Justice Scalia highlighted with his questions about enumerated powers, the Constitution didn’t give the federal government the authority to be the health insurance industry.

  • Patrick says:

    Eric Z – funny you should use the VA system as a prime example of the single payer. I am a retired non-combat Vietnam veteran who, despite the promise of my government, is denied care at the VA hospital and clinics. You see I don’t fit into a category above 7/8 (depending on how limiting they want to be). Also VA care is not portable – you sign up in St. Cloud – you need to get care at that hospital. You can do the paperwork to change but why should I have to jump through that hoop(s).

    I think you confuse “care” with “coverage” – anyone who needs care in this country has access to it…hospitals must treat patients even if they don’t have insurance that will not cover treatment. What we need is more people exercising personal responsibility and quit waiting for someone else to take care of them.

  • Michael Mielauskas says:


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