Government by Commerce Clause


Thursday December 2nd, 2010   •   Posted by William J. Watkins Jr. at 2:27am PDT   •  

Are there any limits to the federal government’s power to regulate commerce? U.S. District Judge Henry Hudson has promised a decision on this issue before the end of this year. Judge Hudson is presiding over the Commonwealth of Virginia’s challenge to the Patient Protection and Affordable Care Act (better known as Obamacare), which forces Americans to buy health insurance or pay a fine.

Congress claimed authority to pass this legislation under the Constitution’s Commerce Clause. Pursuant to this enumerated power, Congress may “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” When the Constitution was drafted, commerce was understood, as explained in Samuel Johnson’s Dictionary of the English Language (3d ed. 1765), as “intercourse, exchange of one thing for another, interchange of anything; trade; traffick.”

The purpose of the Commerce Clause was to establish a free-trade zone within the United States by removing internal trade barriers — to promote the unhindered traffic and exchange of manufactured items and foodstuffs.

Prior to the Constitution, some states taxed goods that were simply passing through on their way to another state. Such taxes raised the price of goods and discouraged trade. By granting Congress a commerce power, the framers sought to destroy these internal trade barriers. In the words of Alexander Hamilton, an “unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions.”

So what does mandating the purchase of health insurance have to do with items freely traveling across states lines? Nothing. Then how can Congress claim that the law establishing Obamacare is a regulation of interstate commerce?

Unfortunately, over the past 70 years, the Commerce Clause has been stretched beyond recognition. . . .

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