This Thursday, the Supreme Court is expected to issue its ruling in the landmark challenge to the Affordable Care Act. While upholding the law would further entrench the court’s already incomprehensible Commerce Clause jurisprudence, striking down the infamous individual mandate would create opportunities to halt or even scale back the step-wise transformation of the Commerce Clause into a general police power never contemplated by the Framers.
The Constitution creates a government of limited powers, including the power to “regulate commerce.... among the several states.” Throughout most of American history, this language was interpreted to limit the reach of Congress to matters of interstate commerce — transactions for goods and services that crossed state borders. After the New Deal, the Interstate Commerce Clause was expanded with strained logic to create what resembles a federal police power, mirroring that power of states to legislate generally with reference to the public health, safety, and welfare.
In Wickard v. Filburn (1942), the Supreme Court upheld the enforcement of federal limits on wheat production against a farmer growing wheat for personal consumption, reasoning that because Filburn’s homegrown wheat reduced the need for him to buy wheat on the commodities market, Congress could control how, when, and to what extent he grew it. Filburn was forced to destroy his crops and pay a fine, even though he was not engaging in commerce and his actions were in no way interstate. In 1995, the Supreme Court put a modest and flexible limit on the modern, expanded Commerce Clause, ruling that Alfonso Lopez could not be convicted under a federal law prohibiting firearms in school zones. Because his activity was “non-economic,” such that one would have to pile “inference upon inference” to see a connection between Lopez’s gun possession and interstate commerce, the court struck down the “Gun-Free School Zones Act” as unconstitutional. Yet, in the 2005 case of Gonzales v. Raich, the Supreme Court apparently embraced once more the free-wheeling Commerce Clause of Wickard, ruling that Congress can regulate as interstate commerce the small-scale growing of marijuana exclusively for personal, medicinal use as allowed by state law.
As a result of these cases, Congress has been able to pass legislation under the Interstate Commerce Clause to regulate virtually any aspect of Americans’ economic lives. This was the context in which Congresswoman Nancy Pelosi famously retorted “Are you serious?” when a reporter asked her which part of the Constitution empowered Congress to pass the Patient Protection and Affordable Care Act, better known as “Obamacare.” This law offers every American the choice between purchasing a government-approved health insurance policy or paying a penalty. In the course of the constitutional challenge to Affordable Care Act, the government maintained that this individual mandate was needed to cure the failures of the health care insurance market — Obamacare commands commerce in order to better regulate it.
Many, if not most, Americans are concerned with the size and scope of government. If the Tea Party movement showed anything, it was that many people believe their government has grown to improper and even unlawful proportions. The vast expansion of federal government in the 20th century occurred in large part because the Supreme Court failed to give meaning to the limits imposed on Congress by the Constitution. As a result, Congress felt empowered to pass a law premised on the idea that the federal government may force Americans into contracts with private companies in order for regulators to more conveniently micromanage their economic affairs. The Affordable Care Act is an unprecedented reach into citizens’ lives, it exceeds any legitimate role of the federal government, and it is unconstitutional.
On Thursday, the Supreme Court will issue its opinion in this important case. If it upholds the law as constitutional, they will reinforce the departure from a proper reading of the Commerce Clause that has led to the unbridled expansion of government authority over our lives. If it strikes down the Affordable Care Act as unconstitutional, however, the court will place some limit on the modern Commerce Clause, cautioning Congress against such brazen overreach into our economic lives. A sufficiently forceful opinion could even give future litigants a foothold in making future challenges designed to scale back the unconstitutional scale of government.
The Affordable Care Act challenge offers the best hope of cropping an overgrown state, and proponents of limited government will cross their fingers in anticipation of the court’s ruling.