Reality Check: A Look at What the Commerce Clause Actually Says

The language of the Constitution itself has been absent from coverage of the Supreme Court's hearings on Obamacare. Here's a refresher.

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The Supreme Court case that may determine the fate of the Affordable Care Act turns partly on the Commerce Clause and how broadly the justices construe the power that it grants to Congress. But coverage of the case rarely if ever quotes the language of the Constitution itself. That is partly because many decades of constitutional law and attendant precedents shape how the c=Court decides case. But the presence of Justice Thomas is reason enough to quote the document itself, for although he subscribes to stare decisis on statutory matters, he is willing to overturn longstanding precedent if he thinks doing so will right constitutional law, and he has long avowed that his lodestar is the text of constitution. Why don't we have a look at it? 

The Commerce Clause is set forth in Article 1, Section 8's enumeration of federal powers. Here's the language:

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
Section 8 goes on to list a bunch of other enumerated powers, like the power to declare war, to maintain a Navy, and "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Perhaps looking at the language itself helps some readers to better understand the perspective on the commerce clause shared by rank-and-file conservatives. It was adeptly articulated by a commenter beneath the last item I wrote on this subject.

His take:

Under the Articles of Confederation the states conducted their own trade policies, not Congress. The Commerce Clause was meant to rectify this and is better understood as a free trade clause, which is why the bit about commerce among the several states also appears alongside "foreign Nations" and "the Indian tribes" (which were also regarded as foreign entities).

Basically it was put in place to ensure that Congress would prevent trade barriers being erected between the states or states conducting their own trade policies. The Commerce Clause does not say that Congress has the power to regulate trade with foreign countries, the Indian tribes, and -- oh by the way -- also do whatever it pleases so long as it even tangentially has anything to do with commerce.  From a logical standpoint it also makes little sense that the Constitution would be written to grant the federal government specific and limited powers and then pretty much obviate that through a commerce clause that gives the government pretty much free reign... This idea that, well, health insurance has to do with commerce and therefore the feds have a blank check to do what they like is beyond silly.

To be clear, this gentlemen isn't contesting the fact that subsequent Supreme Court decisions interpreted the commerce clause in a way that suggests the Affordable Care Act falls within it. He's saying, rather, that current precedent is so far afield from the original intent as to merit revision. Contra a lot of liberal commentators, I don't think that analysis is silly or so illogical that we should mistrust his motives. It's one reasonable conclusion an educated citizen might draw after reading and pondering the Constitution for himself. It includes a lot of overlap with the analysis that Robert Bork and Daniel Troy offer in their June 2002 Harvard Journal of Law & Pubic Policy article, "Locating Boundaries: The Scope of Congress' Power to Regulate Commerce," which gives a more detailed and sophisticated conservative perspective on the relevant history.

As they state:

There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them... Originalists thus face a particularly difficult task in trying to find a way to give current effect to the original philosophy that animated the adoption of the Commerce Clause and other limited federal powers.

That philosophy is federalism, which remains a constitutional value.
In recent days, Obamacare advocates have been at pains to make it seem as though any vote to strike down the legislation is an illegitimate exercise in judicial activism, so removed from sound constitutional analysis that it could only be explained by rank partisanship. But that isn't so. For Justice Thomas, voting to strike the law down is perfectly consistent with the judicial philosophy he has long articulated, and while liberals are within their rights to argue against his approach, they do a disservice to Thomas and the institution of the Court when they impute to him partisan motives.

The rest of the conservative justices face a more difficult decision. All are to varying degrees supporters of both stare decisis and the notion that a core function of the Constitution is to divide power among the federal government and the states, putting meaningful limits on Washington's power. Weighing in on the Affordable Care Act, they're inevitably going to undermine at least one value in which they earnestly believe. That's why I expect that Justice Roberts or Justice Kennedy is going to vote to uphold Obamacare even while asserting as broad a limiting principle on the Commerce Clause as possible. If I'm wrong and the individual mandate is struck down, the reason won't likely be that the Court's conservatives want to pander to their Republicans friends. Rather, they'll be "trying to find a way to give current effect to the original philosophy that animated the adoption of the Commerce Clause," and conclude that its impossible for them to do so if the outer limit of federal power extends to forced purchases. I don't know that I'd draw the line there, or that this case is ideal for line-drawing. But as far as I can tell, very few people on the right or left have a compelling theory of where the line should be drawn.
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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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