Today's Opinions, Tomorrow's Reality 

A Wilted Figleaf

By David G. Young

Washington, DC, April 4, 2012 --  

The Supreme Court should invalidate not just the health insurance mandate, but strike down the 70 years of precedent that made it possible.

When conservative Justice Antonin Scalia asked abrasive questions about the health insurance mandate in the Affordable Care Act, comparing it to forcing people to "buy broccoli" or "join [an] exercise club", nobody was surprised. But when swing Justice Anthony Kennedy joined the critical tone, saying the law "changes the relationship of the Federal Government to the individual in a very fundamental way," left-leaning Americans began to worry.

The law's defenders have since pounced on the comments of the Supreme Court's right-leaning justices, calling them politically-oriented and ignoring precedent.2 This precedent is based on nearly 200 years of decisions on the Constitution's Interstate Commerce Clause. Government lawyers say the power to regulate interstate commerce includes the health insurance market, so an individual mandate to buy insurance is constitutional.

The debate about what is "interstate commerce" has been going on since Gibbons vs. Ogden in 1824. That decision saw the court's first expansion of government power, ruling that Congress could regulate commercial steamboat traffic not just across a state boundary line, but in any part of a navigable waterway that touches state borders.

By modern standards, this expansion of government power is incredibly modest. It was only beginning with the New Deal in the 1930s that Congress began passing willy-nilly laws to interfere with every aspect of private life and using the commerce clause as a figleaf justification.

By the early 1990s, these figleaf justifications had become so obscure and tortured that the government argued it could stop development on private wetlands anywhere in the country. They took "navigable waterways" to the ultimate extreme, saying that because water runs downhill, regulation of any wetland was covered by the commerce clause. Even in basin regions, where water doesn't flow to the coasts, they argued the movement of migratory birds between these and non-basin wetlands makes a unified ecosystem, giving them the power to regulate everywhere.3

The argument was and is intellectually obscene. Clearly, this is not what the authors of the constitution intended. And though the Supreme Court ruled against the "migratory bird" argument in a 2001 case, its narrow decision skirted the fundamental issue of the all-reaching commerce clause precedent. As a result, such crazy interpretations have yet to be struck down. But it's long overdue.

Of course, the Supreme Court's respect for precedent is the main obstacle to this change, something that left-leaning Americans relish. But from time to time, the Supreme Court can and does reverse precedent.

Before the New Deal era, it was exactly the opposite precedent that had been established -- that the constitution did not give Congress sweeping regulatory power over activities not directly related to cross-state commerce. This precedent led to the overturn of several of President Franklin D. Roosevelt's New Deal laws in the mid-1930s, and in 1937, an impatient president threatened to solve this problem by packing the court with his supporters, expanding it from nine to 15 justices.

While his court packing plan failed, it proved unnecessary. Conservative justices retired. Swing justices changed their minds to support big government (whether this was through intimidation from the court-packing threat is a matter of controversy). But by the end of his presidency, he had appointed seven of the nine Supreme Court justices, who quickly proceeded to overturn earlier precedent and give us the tortured interpretation of the commerce clause that stands to this day.

Given that this court was responsible for such morally dubious decisions as Korematsu vs. United States, that upheld forcing Japanese Americans into concentration camps during World War II, overturning its precedents should not be a tough sell. The Supreme Court should not only strike down the health insurance mandate, but also roll back 70 years of legal abuse of the Interstate Commerce Clause.

Yes, left-leaning Americans would loudly complain that this is undemocratic. But they do have an alternate democratic remedy: change the Constitution. If left-wing reformers want to expand government to do something that the Constitution doesn't allow -- banning guns, forcing people to buy health insurance, etc., then there is a well-established process available.

In the last century, constitutional amendments were used to create an income tax and to outlaw alcohol. It's a difficult process, but not so difficult that activists weren't able to overcome both millions of drinkers and the powerful liquor and beer industry to impose their ideas on the country. Just over a decade later, opponents of the same amendment showed that it was possible to seek a repeal.

For those who value liberty and the rule of law, it is right to hope for the court to strike down the health insurance mandate. Liberty's true dreamers, however, hold out real hope for a reversal of precedent in the tortured interpretation of the Interstate Commerce Clause, upon which this and many other abuses of liberty are based.


1. Supreme Court, Oral Argument Transcript, Tuesday, March 27, 2012

2. New York Times, Broccoli and Bad Faith, March 29, 2012

3. Enviornmental Law Online, Case Summary: Leslie Salt Co. v. United States, as posted April 2012