Note in today’s Wall Street Journal

“Make no mistake, Roberts gave the conservatives a very big gift—a ticking time bomb that could explode in cases down the line,” said Nan Aron, the president of the Alliance for Justice, a liberal-leaning civil-rights organization in Washington. “The Commerce Clause undergirds the entire fabric of government and a lot of our laws.”



A Close Call Analysis


Jay B Gaskill

Attorney at Law


The Administration’s Health Care Reform legislation is alive. The Affordable Health Care act that became unaffordable is still the law of the land. The individual mandate has survived as a tax, thus preserving the essence of the law, and the Supreme Court, itself, from taking the rap for what would have been the most massive legislative repeal in history.  The real surprise of the day is that the swing vote was not Justice Kennedy, who still would not save the mandate in any form, but the conservative Chief Justice Roberts who voted with the court’s four liberals.

Obama-Care is still an expensive, bureaucratic mess, ripe for repeal or, at the very least, some major surgery.  But the patient is still alive…for now.

The Might-Have-Been Scenario…

Stop to consider what might have happened under a more prudent, conscientious and traditional administration. At the outset of the Obama-Care proposal, we might have actually had congressional hearings, a measure-by-measure debate and a careful consideration of individual reform measures.  Instead we were treated to the sorry partisan spectacle of a frantic effort to push through a package so comprehensive and poorly drafted that, even last month we were discovering problems that still need correction. The measure’s flaws prompted the administration to grant 1,200 waivers.  We started with a health care system that served 80% of us quite well; and we could have begun a careful and incremental process of extending care to the underserved in ways that would not degrade or damage the care enjoyed by the vast majority of Americans.  We could have (but did not), for example, lighten the load on our hospital emergency rooms (already mandated to take all comers without regard to patients’ means) by creating sliding-scale clinics financed by a combination of taxes and contributions.

The administration adopted a bulldozer approach. The well-meaning social engineers (the “we-will-make-the-world-a-better-place” set) had achieved fleeting two year hegemony over both legislative chambers and the executive branch. With no time for reflection, no willingness to give due consideration to the constitution, no patience to consider the public fisc or the prudential requirements of wise policy, they handed their fellow Americans a measure that neither the president nor the members who voted on it were actually able to read, let alone study.

We could (but did not) accomplish a number of rational, incremental reforms.

Why the Supreme Court Case was about Abuse of Power…


The great constitutional scheme on which our republic is based consists of enumerated powers of government balanced against enumerated rights in a specifically biased way:  The enumeration of rights was not intended to be exclusive – there are non-enumerated rights as well (such as privacy); but the short list of enumerated powers was intended to be exclusive – there were to be no powers given the federal government that were not enumerated in the constitution.

One enumerated power was granted by the so called “commerce clause” – congress shall have the power – “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[1]

Put plainly, the commerce clause was originally designed to clear the path for free and unencumbered trade within the USA, overriding contrary state levies, tariffs and restrictions, because, after all, we were members of one union.  By the early 1800’s, the commerce clause was used to prohibit state monopolies over travel on interstate navigable waters.[2]

The Attempted Power Grab

In the Obama Care package, the administration chose to rely on a single enumerated power, the federal authority to regulate commerce in order to force all Americans to purchase insurance. There is a century of constitutional litigation here, well beyond the scope of this piece to summarize. But suffice it to say that this single grant of power has supplied the foundation of a huge expansion of federal sovereignty over states and individuals.

Note the restraint that previous administrations have shown. For example, under Jimmie Carter, the 55 mile an hour speed limit was not imposed using the raw Commerce clause power; it was imposed as a condition attached to the receipt of federal highway moneys.  In another example, national educational policy is not directly imposed on the states and their various educational institutions, but is attached as a condition to receiving federal aid. The arguments that were advanced by the current administration in favor of the insurance mandate represented a truly radical departure from constitutional tradition.

At its most extreme, the proponents of the commerce clause power maintain that even passive behavior affects commerce (much as the flutter of a prehistoric butterfly might affect the timing of Lincoln’s birth.) This view converts the grant of a power originally designed to free the flow of commerce among the states into a truly comprehensive authority over every aspect of our behavior.[3] The continued expansion of power under the commerce clause would lead to truly staggering excesses because our every action can be viewed as potential consumer behavior. If the administration had actually won this part of the argument, the enumeration of powers structure of our constitutional system would be a dead letter.

The tension over the commerce power was evident during oral arguments.

“Tuesday’s two hours of Supreme Court oral arguments on Obama-Care’s individual mandate were rough-going for the government and its assertions of unlimited federal power. Several Justices are clearly taking seriously the Constitution’s structural checks and balances that are intended to protect individual liberty.

“ ‘Can you create commerce in order to regulate it?’ inquired Justice Kennedy, in the first question from the bench. To ask another way, does the Administration think it has plenary police powers to coerce individuals into economic transactions they would otherwise avoid?’

And the justice added –” ‘The government is saying that the federal government has a duty to tell the individual citizen that it must act,” he said, “and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way.”‘

Wall Street Journal 3-27-2012.

As it turned out, Justice Kennedy was still the swing vote on the lynchpin Commerce Clause issue, but Justice Roberts finessed the whole controversy by upholding the mandate under a separate federal power, the power to tax.  But the precedent holds.  Americans cannot be compelled by the federal government to make a purchase in order to further or restrain commerce among the states. The commerce clause does not reach passive behavior, nor can it be used to compel active consumer behavior.

The Bullet We Dodged….

From time to time, history unites the passionate and deeply motivated (we-pray-the-world-will-be-a-better place), and the well-meaning, determined social engineers, (we-will-make-the-world-a-better-place). These are combustible moments.

The last major push for social reform in the USA that represented the alliance of prayerful, well-meaning liberals and a major attempt at social engineering took place in 1920. After bitter public argument, the country banned beer, wine and booze.  In that fateful year, the income tax was generating almost 10 times the tax money received from that older cash cow, liquor taxes. But income-tax revenues paved the way for Congress to enact alcohol prohibition. Two constitutional amendments (the 16th and the 18th) were needed to bring this all to pass. [The income tax was enabled via the 16th Amendment, having been ratified 1916 as a prelude to prohibition.]

And that is the takeaway point.  Imposition of prohibition was a violation of the existing constitutional structure.  Therefore it had to be accomplished via a constitutional amendment (the 18th amendment, thankfully repealed under Teddy Roosevelt by the 21st Amendment). If the current administration’s constitutional theory supporting the Obama-Care mandate that all Americans be compelled to purchase insurance had been upheld, we would no longer need a constitutional amendment to enact prohibition or any similar regulation of personal behavior – should the country ever again find itself in the grip of reformist zeal[4]. If ever adopted, the administration’s constitutional theory will leave us with no further constitutional barrier, check or balance against the “we-will-make-the-world-a-better-place” impulses of the social engineers, except a few specifically enumerated rights like free speech.

I still am of the opinion that Obama-Care was an act of executive and legislative malpractice. It was and is an expensive mess.  Today’s decision has not averted a fiscal and health care administration disaster of epic proportions. But it still leaves open that task to the congress and president.

There is still time

One Vote…

To paraphrase Ben Franklin, “It’s a constitution if we can keep it.” We did…just barely, because justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan were outnumbered…by just one, carefully qualified vote.

It is sobering indeed to contemplate that we came so close to surrendering a major bulwark against untrammeled federal power. As Thomas Jefferson warned us, “The price of freedom is eternal vigilance.”

And to console Mr. Obama, Thomas Jefferson left the reminder that “No man will ever bring out of the Presidency the reputation which carries him into it.”


Copyright © 2012 by Jay B Gaskill, Attorney at Law

Forwards, links and quotations with attribution are welcome and encouraged.  For everything else, please contact the author via e-mail at

[1] James Madison (1731-1836) is widely recognized as the principal author of the US constitution.  In 1829, Madison he wrote about the commerce clause: “Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.” – Letter to Cabell, February 13, 1829.

[2] …In Gibbons vs. Ogden 22 US 1 (1824) – “…when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress.” 22 US 200.

[3] Credit for promoting the constitutional case against the mandate when few took it seriously goes to Virginia Attorney General Ken Cuccinelli, Duke University law professor Walter Dellinger, and Georgetown University law professor Randy Barnett.

[4] What could be next on the government’s prohibition list? …Large containers of soda pop? …French fries?

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