Focusing on the insurance mandate in the Affordable Care Act, (Obamacare) a few months ago I wrote a series of four articles for a publication, reproduced here as, “Health Care Mandate and the Commerce Clause Articles.” In these four articles, I explored why I found the base argument that the government could regulate activities like these in a state difficult to fathom by reading the commerce clause in the constitution.
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
In my original look at this issue, I examined the precedent cases cited by many as the basis for the idea of why the Federal government had, in this case, a superior right to the sovereign rights of the states, something that all agree was expressly limited by the framers of the constitution. Reading these historical rulings made this concept that this is a Federal right even more difficult to swallow because I found that these earlier rulings often were even less convincing and often more startling in the extent that the arguments became even more extracted and remote in their nature.
In reading the arguments and the rulings of the 11th Circuit U.S. Court of Appeals, I found an additional reason why I find the base idea that the Federal government has the right in instances like this to regulate the action of individuals in a state even more specious. This is actually the simplest argument against such a right, and likely it would even hold the same effect at a state level. It is part of the many arguments that have been made in the numerous constitutional challenges over these past few months. But like much of these debates, the nature of the arguments has become complicated by excess verbiage and legal flanking obscuring for most of us the basic concept.
This additional argument comes in to points. First, let us look at the definition of the word commerce. In reviewing the many variations of the definitions available there are some basic common elements throughout. They combine into the following.
- The buying and selling of goods, especially on a large-scale, as between cities or nations.
- Intellectual exchange or social interaction.
Second, we simply need to ask a very obvious question, and one that while it has been raised by the legal scholars in the various debates in one form or another, it has been lost in the myriad levels of complexity provided more, it seem, to delight the ears than to illustrate the point.
If commerce is either the act of buying or selling something, and depending on whether or not the activity was international, with the indian tribes or among the several states it could either be regulated by either the Federal government or the states. How is NOT buying anything then an act of commerce in the first place? And, if it is in fact NOT commerce then the argument on who regulates the action under the commerce clause is moot.
Of course legal scholars will use tangents of the “Wickard vs. Filburn” case to argue that not buying is an action that reduces the commerce among the states and therefore in reducing the revenue is itself something that impacts commerce and therefore can be regulated. I guess this is the kind of argument our parents made for us to eat lima beans.
As a child my parents, who were good and nurturing parents, used to make me eat lima beans. Every time I took a mouthful of lima beans, I had to rush to the bathroom to vomit. And of course when I came back to the dinner table, I had to have yet another mouthful of lima beans, promulgating the same response. Their justification was they were good for you. Of course, the loss of the rest of the contents in my stomach and the various fluids and electrolytes that went along for the ride, did not enter into the equation – lima beans are good for you, we have lima beans, ergo you need to eat the lima beans because they are good for you!
My father, a lawyer and son of a prominent judge, I suppose was simply adapting some of the arguments from the prior court rulings justifying the extension of the federal powers under the commerce clause, when he said, “There are people in other lands who are starving and it would be a sin for you not to eat those lima beans while they starve.” He must have chosen this argument because it is so similar in the base points made in the historic extensions of federal power under the commerce clause.
In “Wickard vs Filburn,” the court ruled that poor old Roscoe Filburn’s wheat had to be destroyed because he grew more than the law, at the time allowed, even though he was using it on his own farm to feed his animals. In the case against Roscoe, it was deemed against the law because his flagrant activities of wanting to feed his animals this ill grown wheat, reduced the grain he would have had to purchase from other states if he had not committed the heinous act of growing it himself. Of course the fact that he likely would have bartered with the farmer down the road in his same state and that Roscoe, during the depression, likely did not have any cash to pay for the wheat in the first place was not relevant. Roscoe, was not buying wheat from other states and as a result he was affecting interstate commerce and therefore the Federal government had the right under the commerce clause to regulate him so his wheat had to go. Now Roscoe, eat those lima beans because they are good for you!
We have a strong habit in this country to stretch quite far to make the points we want to make. We will obscure, misdirect, abstract and extend, often by many more than the “Six Degrees of Kevin Bacon,” in order to get the result that we want. In doing this, either in the desire to accomplish an end we know people otherwise would not support or to appear brilliant by the use of flowery language and abstract argument, we often forget the simple and common sense argument. The one we can all understand. The one that actually stands up to quick and continued scrutiny.
Throughout these articles I have not wanted to argue whether or not we as a nation should require all to purchase insurance. There are very good arguments both for and against this practice. I simply am saying making these further and further abstract arguments, whether by legislative action, or judicial injection is not the way to achieve it. In the end we spend billions of dollars arguing points that any person working in the fields or factories would screw up their faces and say, “What?” If you related the “Wickard vs Filburn” issues to anyone working for a living they would have a simple answer.
In the end it is not hard to subvert intentions. In the case of our current political motivations regarding the Affordable Care Act , so called Obamacare, we see exactly the extent that politicians and governments will go to get the outcome they want. It takes years of very expensive education and hundreds of millions, if not billions of dollars, to arrive at the decisions that have been rendered based on the various political governmental and abstract interpretations of the commerce clause! Only we can ultimately stop this and force those we elect to find the simple and most pragmatic answers.