Life, liberty, health care | Increasing federal encroachment onto our personal liberties hinges on a clause
For the moment at least, ObamaCare is the law of the land. President Obama signed the Patient Protection and Affordable Care Act into law in March 2009 to mixed reviews. The act runs 2,000 pages and involves dozens of new federal agencies requiring uncounted new federal regulations. If the act survives court challenges and repeal efforts by the current Congress, the federal government will take over the entire U.S. health care economy in stages, centrally allocating care to the American people and restricting the decisions we can make concerning our lives and medical care.
I am not a fan of ObamaCare or any government-run system. I experienced government health care as a graduate student in Britain in the late 1970s. It was not good then and the quality of care has only declined as budgets have exploded. Finding a primary care physician or a dentist in Britain today can be difficult and the British papers publish stories of cost overruns and neglect on a weekly basis.
My quarrel with ObamaCare, however, goes far beyond budgets and quality of care. It involves my personal liberty. Every decision the federal government takes from me is one fewer I make for myself. My body, health care and medical decisions are my business — not the government’s.
The founders of our country supposedly wrote a constitution to keep the federal government out of our intimate decisions, and yet it is. How it got there comes down to one clause in Article I, Section 8 of the U.S. Constitution and its distortion and misapplication by federal courts and Congress. This is the so-called “Commerce Clause,” which gives Congress the ability to “regulate commerce ... among the several states,” and has become the justification for federal legislation in areas that seemingly have nothing to do with “interstate commerce.”
Beginning during the New Deal era, the U.S. Supreme Court greatly expanded the interpretation of commerce power, allowing Congress to legislate in areas unknown since the country’s founding. The floodgates opened wide with the 1942 case of Wickard v. Filburn, in which the court upheld the federal government’s power under the Agricultural Adjustment Act of 1938 to prevent an Ohio farmer from growing wheat for his personal consumption, reasoning that because the farmer’s wheat-growing activities reduced the amount of wheat he would buy on the open market, and because wheat was bought and sold nationally, the farmer’s production “affected” interstate commerce.
Note that the farmer had no intention of selling his wheat, either locally or across state lines. Merely abstaining from purchasing wheat on the open market — that is, negative economic activity — was held to affect commerce so as to trigger federal jurisdiction and regulation.
For the next 50 years, federal courts found scant reason to deny Congress the power to regulate, even in areas remote from ordinary commerce, and Congress hasn’t been bashful in asserting its control. For instance, the Civil Rights Act of 1964 was based on commerce power, as was the 2006 Sex Offender Registration and Notification Act and the 1994 Violence Against Women Act. In each case, Congress used Filburn’s commerce analysis to justify federal legislation in local matters.
In two more recent cases, U.S. v. Lopez (1995) and U.S. v. Morrison (2000), the U.S. Supreme Court began to pull Commerce Clause jurisprudence back to a more conventional connection to actual interstate commerce. But activist Congresses — Republican and Democrat alike — have continued to impose ever greater control over our lives and fortunes and have used commerce power to do it. And in the most massive intrusion of all, ObamaCare will require every U.S. citizen to purchase a minimum level of health insurance coverage each month beginning in 2014 (known as the “individual mandate”).
But a line has been drawn in the sand. After the passage of ObamaCare last March, nearly half the states’ attorneys general filed suit against the federal government on behalf of their respective states in two lawsuits, one in Virginia and the other in Florida. The specific constitutional issue in both suits is Congress’ power under the Commerce Clause to compel citizens to purchase insurance, and whether a citizen’s refusal to make such a mandatory purchase affects interstate commerce. Congress has never attempted to force citizens universally to purchase a product or service and no court has ruled on whether negative economic activity — that is, the refusal to make the required purchase — substantially affects commerce so as to trigger federal jurisdiction and control.
At issue are the limits of government power over our lives. What started as an exercise in limited government of highly select, “enumerated powers” has finally devolved into a government that can, in the words of Sen. Tom Coburn, require us to eat vegetables three times a day. In the end, it’s not about health care, it’s about liberty. And it turns on a phrase.
David Crocker, director of the Center for Constitutional Government at The Maine Heritage Policy Center, can be reached at dcrocker@mainepolicy.org. Read more Public Engagement here.
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