In the Aftermath of a Landmark (?) Decision

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Jun 28, 2012 No Comments ›› John Eidsmoe

In the Aftermath of a Landmark (?) Decision


John Eidsmoe, Colonel (AL), Alabama State Defense Force

 [Note: This article is written in two parts, Part One the day before the health care decision, and Part Two in the hours thereafter.]

During the March 27th oral arguments before the Supreme Court on the constitutionality of President Obama’s health care legislation, swing Justice Anthony Kennedy asked the U.S. Solicitor General a key question.  That question was, and is, “whether or not there are any limits on the Commerce Clause.”

Not only is this the key issue underlying the debate over socialized health care; it is a basic issue of constitutional interpretation.   Did the Founding Fathers create a constitutional republic in which the federal government has only those powers delegated to it by “we, the people” through the Constitution?  Or did they create a national government which has all powers except those specifically denied to it by the Constitution?

The Framers thought the answer to that question was self-evident.  Following John Locke,  they saw the Constitution as a social compact in which the people delegate certain powers and no others.  But just so someone in the twenty-first century didn’t get it turned around, they carved it in stone with the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Commerce Clause, found in Article I, Section 8 of the Constitution, delegated to Congress the power to regulate three types of commerce:  interstate commerce, international commerce, and commerce with and among the Indian tribes.   It did not delegate to Congress — and therefore, pursuant to the Tenth Amendment, withheld from Congress — power to regulate intrastate commerce, that is, commerce within a state.  The Commerce Clause is therefore a grant of power to Congress, but within that grant is a clear limitation — or so the Framers thought.

In similar fashion, the General Welfare Clause of Article I, Section 8 is also both a grant and a limitation of power.  The clause grants to Congress the power to tax and spend for the “general welfare” of the country.  The word “welfare” is a grant of power, but the word “general” is a limitation on that grant. Congress may tax and spend for the general welfare of the country as a whole, but not for the specific welfare of individuals, regions, or socio-economic groups.

From the beginning ofAmerica’s constitutional history, lawmakers have been sensitive toward these limitations.  James Madison, called by many the Architect or Father of the Constitution, objected in Congress to a bill that would provide aid for French refugees. Madisonwas sympathetic to the refugees’ plight but concerned that the bill was unconstitutional and would set a bad precedent.  He declared,

I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.

Congressional Record, p. 170, Jan. 1794.

In 1854 President Franklin Pierce vetoed a bill to provide federal lands for the treatment of the insane.  In his veto message he declared,

I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which theUnionof these States is founded.

Franklin Pierce, Veto Message, May 3, 1854. (http://www NULL.lonang NULL.htm).

In 1887 President Grover Cleveland vetoed a bill that would have appropriated $10,000 to purchase seed and distribute it among farmers who faced hardship because of a drought.  In his veto message he stated,

I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people.

Grover Cleveland, Veto Message, February 16, 1887, Congressional Record, 49 Cong., 2d Sess., vol. XVIII, Pt. II, 1887, p. 1875.

Gradually, in the twentieth century, Congress began to usurp more and more authority to regulate intrastate production as well as interstate commerce.  In NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937), the Court held 5-4 that Congress through the National Labor Relations Board could regulate local labor disputes in the steel industry because they might affect the flow of steel in interstate commerce.  And in Wickard v. Filburn, 317 U.S. 111 (1942), the Court said Congress could punish a farmer for raising excess grain on his own farms and feeding it to his own livestock, because that could have a substantial effect upon interstate commerce.

Likewise, in Steward Machine Co. v. Davis, 301 U.S. 548 (1937), the  Supreme Court upheld the payroll tax provision of the Social Security Act, as authorized by the General Welfare Clause because ultimately everyone benefits from it.  One can see the logic of these decisions, but the result is that the distinction between interstate and intrastate commerce, and between general welfare and specific welfare, have been virtually obliterated.

But maybe not totally obliterated.  In United   States v. Lopez, 514 U.S. 549 (1995),  Chief Justice Rehnquist ruled in a 5-4 decision that a federal ban on firearms in or around public school buildings was unconstitutional.   The fact that firearms might adversely affect education and that education affects the national economy was not sufficient, the Court said, to warrant the conclusion that this legislation substantially affected interstate commerce.

Obama’s nationalized health care legislation goes much further than this.  It requires states to compel people to purchase health insurance, or pay a penalty for refusing to do so.  States that refuse to impose this requirement will be penalized by losing their federal Medicaid funding.  By the narrowest of margins, after much arm-twisting by the Obama Administration, Congress dutifully passed this legislation.

If Congress can do this, is there any distinction between interstate and intrastate commerce, any distinction between commerce and production, any distinction between general and specific welfare.  To put it more bluntly, if this is constitutional, are there any powers still “reserved to the States, or to the people”?

Stay tuned.  We’ll find out Thursday, when the Court issues what portends to be a landmark decision.



As most of our readers are already aware, the Supreme Court released its ruling Thursday morning.  More eager to report it first than to report it correctly, television pundits stumbled over themselves as they read and reported, paragraph by paragraph, the Court’s complex decision.

To summarize:  the Court upheld most, but not all, of the Affordable Care Act (ACA).  To constitutionalists, the decision is a disappointment, but not a total disappointment

Rather than giving a detailed analysis of the entire opinion, which is being done by others, I will focus upon a few highlights:

(1)  Not Justice Kennedy

As widely predicted, this is a 5-4 decision, but the votes did not line up exactly as expected.   The four liberal Justices, Ginsburg, Breyer, Sotomayor, and Kagan, voted to uphold most of the Act.  Three of the conservative Justices, Scalia, Thomas, and Alito, voted to strike it down.  All eyes were on Justice Kennedy, the swing Justice whose vote has many recent decisions one way or the other; if there was to be a fifth vote in favor of the Act, it would have to be Kennedy’s.  But in fact Justice Kennedy sided with the conservative bloc and voted to strike down the Act in its entirety; in fact, Justice Kennedy authored and read the dissenting opinion.  The fifth vote to uphold most of the Act came from Chief Justice John Roberts, who also voted with the majority to strike down most ofArizona’s immigration act two days ago.

Does this mean the Chief Justice is moving to the Left?  Not necessarily.  Justices tend to be independent thinkers, and we’ll just have to watch and see what he does in the future.  Attorney David B. Rivkin, Jr., conducted an excellent symposium on the health care decision for the Federalist Society this afternoon.  In response to a question, he said the dissenting opinion of Justices Kennedy, Scalia, Thomas, and Alito sounded very much like a majority opinion, and the opinion of Justices Ginsburg and Sotomayor sounded much like a dissent.  He agreed that it is a good possibility that Chief Justice Roberts initially sided with the conservative bloc on this issue but changed his position during or after the deliberations.  The inner workings of the Supreme  Court are usually confidential, and we may never know what actually happened.

(2)  Not the Commerce Clause

The Court ruled that the “penalty” imposed for failure to comply with the individual mandate to buy health insurance cannot be justified as a regulation of interstate commerce.  This is more important than might at first appear, because it further limits Congress’s use of the Commerce Clause as a basis for government intrusion.  As the Court said, the power to regulate commerce does not include the power to compel commerce.

(3)  Not the Necessary and Proper Clause

The Court also ruled that the “penalty” cannot be justified by the “Necessary and Proper” Clause of Article I Section 8.   This too is important.  Section 8 delineates various powers delegated to Congress, and concludes by saying that Congress also has power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of theUnited States, or in any Department or Officer thereof.”  This is sometimes called the “elastic clause” that can be stretched to cover anything not mentioned elsewhere.  But that’s not what it means.  The Necessary and Proper Clause does not grant any completely new powers.  Rather, the Clause must relate to a “foregoing Power” or a power delegated to Congress elsewhere in the Constitution.  For example, Section 8 authorizes Congress to establish post offices.  It says nothing about stamps, mail bags, or mail trucks, but one might reasonably argue that these are “necessary and proper” for the operation of post offices.  Today’s decision reiterates and reenforces the limited effect of the Necessary and Proper Clause.

(4)  But Instead, the Taxing and Spending Clause

Having ruled that the penalty cannot be justified by the Commerce Clause or the Necessary and Proper Clause, the Court then held that it can be justified as a tax under Section 8′s Taxing and Spending Clause.  But in order to do so, the Court had to construe the penalty as a tax.  The problem is, the ACA does not call it a tax, and when the bill was before Congress the Obama Administration emphatically denied that it was a tax.  The reason is obvious:  if it had been called a tax, it would never have passed in Congress.  And so, the it is called instead a “penalty” and a “shared responsibility payment.”  (I hate it when government uses such sanitized terms to conceal what it is really doing!)  And in fact, it is not a tax.  Its clear and obvious purpose is not to raise revenue but to penalize those who refuse to conform to what the Administration wants them to do, i.e., buy health insurance.

Only later, when the constitutionality of the Act was challenged in Court, did the Administration’s lawyers argue that it could be justified as a tax.  The lower courts did not take that argument very seriously, but Chief Justice Roberts seized upon that argument as a way to justify the penalty.

In so doing, the Court majority ignored a basic principle of constitutionalism — respect for and deference to the other branches of government.   Congress and the Administration both chose to characterize the provision as a penalty, not as a tax.  By calling it a tax, the Court has effectively rewritten the Act, thereby engaging in one of the worst forms of judicial activism.

But wait a minute.  If this is a “tax,” then that brings into play Article I, Section 7, Clause 1, which begins, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on the other Bills.”  The reason for this clause is self-evident:  The people pay the taxes, so bills to impose taxes should originate with the legislative body that represents the people (until the 17th Amendment was ratified, Senators were chosen by the state legislatures).  And the ACA originated in the Senate, not the House.  So long as this was a “penalty” rather than a “tax,” that didn’t matter.  But now that Chief Justice Roberts has labeled it a “tax,” that raises new questions as to whether it was properly presented in Congress and properly passed.  It may be that one of the parties challenging the ACA could raise this issue in a motion for rehearing.

(5)  Some Protection of States’ Rights

The Act also required states to expand their Medicaid programs to include all nonelderly persons with incomes below 133% of the poverty level, and it further provided that states which do not comply with this requirement will lose all federal Medicaid funding.   This was a very significant threat, because the federal government requires the states to operate Medicaid programs but also provides substantial funding to the states for these programs.  For example, the State of Alabama’s budget for 2011 was $1.77 billion, $640.5 million of which was for Medicaid.  That $640.5 million is over one/third of the entire state budget.   But it is only 32% of the total Alabama Medicaid program; the federal government provides the other 68%, or $2.08 billion.

If Alabama refused to comply with the federal mandate to expand its Medicaid program, it would lose $2.08 billion in federal Medicaid funding — $410 million more than its total state budget.  I agree with those who say the federal government should not be involved with Medicaid programs at all, but singling out nonconforming states for this discriminatory treatment would be both coercive and crippling.

And on this point the Court ruled for the states.  This requirement, coupled with this threat of withholding Medicaid funds, effectively commandeers the states and forces them to perform functions that they cannot constitutionally be required to perform, and therefore the threatened penalty must be struck down as unconstitutional.  This is the brightest feature of today’s decision:  the Court has reenforced the principle of federalism by recognizing that there are powers reserved to the states with which the federal government may not interfere.   The fact that liberal Justices Ginsburg and Sotomayor strongly disagreed with the majority on this point, is in my judgment further evidence of this soundness of this portion of the opinion.

The Foundation for Moral Law, in an amicus brief filed in this case (http://morallaw NULL.pdf), focused heavily on this point as our main argument against the ACA’s constitutionality.  We are pleased that Court ruled in our favor on this very important point.

(6)  And the Long-Term Effect?

Chris Matthews said the Court today handed President Obama a legal victory but also handed Governor Romney a political issue.   Poll after poll has consistently shown the ACA to be unpopular with the American people.   Governor Romney declared this morning that what the Supreme Court failed to do on the last day of its current term, he will do on his first day in office — begin the process of repealing Obamacare and replacing it with a workable program.

Socialized medicine will be a major issue in elections this fall, and the concluding chapters have yet to be written.  Let’s hope we can establish a health care system that is consistent with free enterprise principles, and let’s pray that we can salvage the Constitution as well.

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