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Count the Errors:
Once in a while I come across an op-ed filled with so many errors, misstatements, and plainly weak claims that the mere number of those becomes far more interesting than the argument of the op-ed itself. A case in point is today's Wall Street Journal op-ed by Fox News Channel senior judicial analyst Andrew P. Napolitano, which argues that President Obama's health care proposals are unconstitutional because they exceed the commerce clause power. Here's an excerpt; how many errors, misstatements, and plainly weak claims can you count?
  The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.
  Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.
  There are also errors by omission, like the curious decision to ignore Gonzales v. Raich, but I think it's only sporting to stick to claims actually made.

  Thanks to the WSJ Law Blog for the link.
Hadur:
I'm surprised that more people don't take Gonzales v. Raich seriously, actually. My suspicion has always been that Gonzales v. Raich does not stand for any constitutional principles, but rather stands for the idea that "the Supreme Court will not interpret its doctrines in such a way as to legalize weed".
9.17.2009 12:27pm
J.R.L.:
"The Supreme Court finally came to its senses . . ."

I found an error!
9.17.2009 12:30pm
ChrisTS (mail):
IANAL, but it certainly seems to me that the insurance industry, and many hospitals, are 'interstate' entities. I'm probably missing some subtlety.
9.17.2009 12:33pm
SassyHats:
You're exchanging currency for a professional service. If that's not commerce, then what is?
9.17.2009 12:39pm
Wade (mail):
If the hacks in black had consistently followed the plain language of the Constitution, then there would be no question that Napolitano's assertions would be correct. There is nothing about health care that has an actual effect on commerce among the states as the term was understood in the late 18th century.

Unfortunately, the Supremes have been ignoring those portions of the Constitution that they disagree with for centuries, so Napolitano is mistaken if he thinks that the Court will do anything to significantly limit the scope of the federal government.
9.17.2009 12:41pm
JMStover (mail):
Just at first glance....

The Lopez case dealt with ALL guns, not just illegal ones, and I *think* it was all schools, not just public ones. If the law dealt with only illegal guns, the law would have been somewhat redundant.

The commerce clause was not meant to regulate strictly "human" activity.

Nothing in the commerce clause was or is meant to to regulate only things that the states do not regulate. Most states regulate many of the things that Congress supersedes with a law under the authority of the commerce clause.

While the practice of medicine does deal with doctors treating patients, it also deals with profit. With medicines that are shipped interstate, most doctors would not be able to prescribe medications to their patients, because they would not be readily available.

While a patient may not like the fact that they have to engage in commercial activity to see a doctor, they do have to pay the doctor -- hence the activity is commercial.
9.17.2009 12:41pm
ruuffles (mail) (www):

if he thinks that the Court will do anything to significantly limit the scope of the federal government.

Why not just elect different people? Hmm? Why go running to the courts?
9.17.2009 12:44pm
Frank Ch. Eigler (mail):
Sassy, maybe it's a trick question. If health care is deemed more like commerce, then perhaps it is less something like a "human right" / public good.
9.17.2009 12:47pm
wrangler5 (mail):
I thought Lopez essentially turned on the absence of a Congressional finding in the Gun Free School Zones Act of 1990 that guns in school zones affected interstate commerce, and that after the Lopez decision Congress reenacted the same law with an additional finding that guns DID affect interstate commerce. I don't know how often the new law has been used, but it was back on the books almost immediately after the Lopez decision. I personally wouldn't want to bet my freedom that the Supremes would find the new law to be beyond the pale.
9.17.2009 12:51pm
Rich B. (mail):
In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines.

Similarly, the delivery of my Florida orange juice, Wisconsin cheese, and California raisins all occurred at my local Acme grocery store, and therefore did not move across state lines.
9.17.2009 12:53pm
Rich B. (mail):
Or, the put it another way, I think Napolitano is an adherent to the "Irwin Fletcher School of Interstate Commerce."


Dr. Joseph Dolan: You know, it's a shame about Ed.
Fletch: Oh, it was. Yeah, it was really a shame. To go so suddenly like that.
Dr. Joseph Dolan: He was dying for years.
Fletch: Sure, but... the end was very... very sudden.
Dr. Joseph Dolan: He was in intensive care for eight weeks.
Fletch: Yeah, but I mean the very end, when he actually died. That was extremely sudden.
9.17.2009 12:55pm
ChrisTS (mail):
Rich B:

Well done.
9.17.2009 12:55pm
Sigivald (mail):
Sassy: That doesn't make it interstate commerce, in any case.

Further, I think he might be right about the Framers' conception of commerce, which seems to have been, at least in the Constitutional context, a lot more about trade in goods* than professional services.

I suspect very strongly that all of them would have been shocked by the idea of Congress regulating going to a doctor, because you paid the doctor.
9.17.2009 1:05pm
Tim Nuccio (mail) (www):
Even though it was poorly articulated here, I really think there's some legitimacy to this argument.

We all know that Congress has vastly abused its interstate commerce power since the new deal. The interstate commerce clause has been just to justify a whole number of intrusions into the lives of the American people with no end in sight.

But looking at the history of the Supreme Court, it is not unheard of for the Court to get involved when things get out of hand. Before the Civil Rights act was passed, for example, Brown v. Board of Education was unanimously decided. The Court also had the opportunity to do so in Korematsu v. United States, and unfortunately it did not (and I'm pretty sure I'm not alone in believing that).

Despite the Court's past interference into big issues when necessary, it is perhaps unreasonable to suggest that it'd interfere with Congress' now-near-unlimited exercise of interstate commerce power. But, unlike any other economic question the Court has ever answered, health care is a $2trillion+ industry. This may be the straw that breaks the camel's back.

I am not confident that the Court will strike down any law that might be passed ,but I certainly think it's a possibility. Congress is heading down a dangerous path into entirely new territory. These debates have gone on since 1912, but every time we have them, we're one step closer to a national health care system.

Is this the issue that narrows interstate commerce? If this isn't, nothing is. 17% of GDP is an awful lot of money.
9.17.2009 1:07pm
JeffDG:
The dissent by Thomas in Raich is one of his best works, and makes the consequences of the decision perfectly clear, that being that the Interstate Commerce clause is a blank cheque to Congress, and they can regulate anything thereunder.
9.17.2009 1:07pm
troll_dc2 (mail):

Similarly, the delivery of my Florida orange juice, Wisconsin cheese, and California raisins all occurred at my local Acme grocery store, and therefore did not move across state lines.


In the old days (before the New Deal), it is not clear whether the Commerce Clause would have applied here. If these products, after having been sent across state lines, had come to rest in an Acme warehouse before being sent on to your store (in the same state as the warehouse), the delivery from the warehouse to your store would not have been in interstate commerce.
9.17.2009 1:09pm
Joseph Slater (mail):
I note that almost none of these comments answer Orin's question/challenge, and instead insist that the past 70+ years of commerce clause jurisprudence has been horribly wrong.
9.17.2009 1:14pm
Tom B (www):
I believe there was another op-ed on the same topic in the WSJ that Prof. Volokh debunked. Even though I wish it were unconstitutional.

I think Hadur summarizes Raich most accurately. I believe it is especially accurate as to Scalia.

Actually, I find Raich to be one of the most offensive SCOTUS cases. At least offensive as applied to my own world view.
9.17.2009 1:15pm
JunkYardLawDog (mail):
Is there any less fundamental right to services of a doctor for various medical procedures the doctor deems necessary as for abortion? Couldn't the entire line of privacy/abortion cases apply to whether a doctor thinks an individual patient should be treated with a specific procedure or test or medical device or medicine and prevent the federal government and the states from interfering with those rights? Especially if the treatment, test, or procedure involves a threat to the life or mental well being of the patient?

Certainly abortion procedures are just as much interstate commerce as any other doctor provided diagnoses or treatment, so if privacy prevents regulation of abortion why wouldn't it prevent regulation of other medical treatment, etc.?

Just curious how people feel about this.

The dog
9.17.2009 1:15pm
Tim Nuccio (mail) (www):

Sassy, maybe it's a trick question. If health care is deemed more like commerce, then perhaps it is less something like a "human right" / public good.


Health care can never be a "public good," anyway. To be a public good, it must be non-rivaled and non-excludable. Our current system should make it very clear that health care is neither of these things. It can neither be consumed endlessly nor is it impossible to prevent people from consuming health care.

Health care is not air. If you cannot pay, you will not get any. Only one person can see the doctor at any given time. This is not to say something profound, just that the facts prevent health care from being a public good.
9.17.2009 1:15pm
cboldt (mail):
-- I thought Lopez essentially turned on the absence of a Congressional finding ... --
.
Basically, yes. I looked up the direct fallout from Lopez a few months ago. There have been prosecutions on the post-Lopez GFSZ Act. The legal term of art in play, and appearing in the statute, is "or affecting interstate commerce." Goods that are not -IN- interstate commerce, such as home-made machine guns, nonetheless can affect interstate commerce.
9.17.2009 1:15pm
butisnt:

In the old days (before the New Deal), it is not clear whether the Commerce Clause would have applied here. If these products, after having been sent across state lines, had come to rest in an Acme warehouse before being sent on to your store (in the same state as the warehouse), the delivery from the warehouse to your store would not have been in interstate commerce.


This is not true. Consider meat regulation at the time of The Jungle. Cows slaughtered in packingtown in Chicago were divided into two types of beef, those that would pass federal regulation and those that could not. The ones that could not would be sold in Illinois, where commerce clause regulation was not possible at the time. The ones that could pass federal regulation would be sold wholesale to distributors in other states, who would serve as middle-men for out of state grocery stores.

It seems evident to me, then, that commerce clause regulations got as far as interstate beef shipments to middlemen in other states, circa 1905.
9.17.2009 1:19pm
Eric Muller (www):
9.17.2009 1:23pm
mrcausality:
I find the statement that "one does not go to the doctor to engage in commercial activity" is false. Would he apply this statement to the local grocer? After all, a man's gotta' eat.

As a lay follower of constitutional matters, I'm fascinated by the Commerce Clause. Previous cases (e.g. wheat) suggest to me how broad rulings can be made if impacts on commerce are inferred implicitly. In this context, *everything* effects commerce and thus comes under the purview of the commerce clause.

Thomas' dissent in G v R includes:

"If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce."

This is exactly what confuses me about how to understand the CC from my armchair position, and from Thomas' dissent, apparently even at the professional level. It appears that whenever any moral or interstate diversity of opinion surrounds the object/service in question, the default position is that its regulation is to be federalized. I realize that there are different schools of thought on the interpretations of the Commerce Clause; but the jurisprudence, at least, appears to tilt toward Washington.
9.17.2009 1:23pm
Melancton Smith:
If health care is regulatable via interstate commerce, then why can't health care insurance be sold across state lines?
9.17.2009 1:25pm
Tom B (www):
No one is counting? Fine, I'll try counting. Brackets are around the false statements.

The Supreme Court finally came to its senses when it invalidated a congressional ban on [illegal guns] within [1,000 feet] of [public] schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause [may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states.] [The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core,] and school safety [has historically been a state function.]
Applying these principles to President Barack Obama's health-care proposal, [it's clear that] his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. [In almost all instances,] the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician [not] to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.


I got 9, but some of those might contain compound errors. I would imagine I missed some too.

I'll summarize the reasons they are incorrect (I may also be incorrect). No guns in a school zone. Instrumentalities, Channels, and activities that substantially affected interstate commerce. Even if medical care is frequently delivered in one place, it is a commercial service that combines many articles involved in interstate commerce.
9.17.2009 1:26pm
Joseph Slater (mail):
JunkYard Dog: If anybody was trying to legally prohibit certain procedures, maybe (assuming Roe v. Wade and its progeny aren't signficantly based in rights to sex/procreation). But of course no health care reform would make any particular procedure illegal (as state laws did with abortion).

And if "denying insurance coverage for a procedure" is unconstitutional . . . we already have a pretty big problem with that.
9.17.2009 1:31pm
Philosopher:
I think it's funny that it took this long for someone to answer Orin's question. Until now, most of the responses supported Napolitano's conclusions, if not his (lack of( reasoning.

It's pretty clear that Napolitano didn't even read Lopez before writing this op-ed. It makes you wonder how little fact-checking is done at the WSJ.
9.17.2009 1:34pm
sTTTaTTTe courTTT:
This is why you always remove to federal court
9.17.2009 1:39pm
peterepeat (mail):
I agree that the article is a tad askew, but I am intrigued by this business of forcing persons to buy goods or services in their own states. Perhaps the real question is whether the states can do that. As I recall, there is a great deal of case law built up re the of states to require residents to purchase liquor or wine only in state. It seems to me that if I want to buy health insurance from a company in Florida (I live in Illinois) that is clearly interstate commerce. (Although as I recall, the Supreme Court held in Paul v Virginia [1869] that the purchase of insurance does not constitute interstate commerce. Perhaps that isnt good law anymore.) One could argue that if the states cannot burden interstate commerce with tariffs, they shouldnt be able to impede it altogether with protectionist measures designed to favor in state merchants.

As there is no real impediment to states requiring citizens to buy certain goods and services only within their borders (other than Congress),perhaps what we need is a const amendment explicitly barring the states engaging in that sort of stuff--it is rent seeking writ large and rife with corruption.

By the time this admin is done, we are going to have to extensively revise the const anyway in order to impose new controls on the fed govt. Why not add a phrase providing that the right of persons to purchase goods and services in states other than their own shall not be impaired federal or state laws?

At the very least, were I a Republican in Congress, I would make the rt to buy health insur in other states a key plank in 2010. Congress could enact min requirements and in the process preempt the ridiculous statutory reqs of states that drive up health care costs. That may go against the party's federalism pretensions, but what could be more un-American than depriving people of the rt to do business anywhere within one of world's largest free markets.
9.17.2009 1:45pm
HeScreams:
I appreciate Tom B's answer, but I'm still a little fuzzy. I'm a non-lawyer, so I think I remember that Lopez is about gun control near schools, Morrison was about battered women, and Raich was about pot. They were all commerce decisions. But I can never remember which said what, what their individual effect on commerce regulation was, and what the resulting allowable commerce reg is. I'm hoping for a followup from Orin...
9.17.2009 1:48pm
Steve:
JunkYard Dog: If anybody was trying to legally prohibit certain procedures, maybe (assuming Roe v. Wade and its progeny aren't signficantly based in rights to sex/procreation). But of course no health care reform would make any particular procedure illegal (as state laws did with abortion).

How about, hypothetically speaking of course, a federal law purporting to ban the use of medical marijuana? Or an interpretation of the Controlled Substances Act that precludes individuals from accessing physician-assisted suicide?
9.17.2009 1:56pm
MikeR:
I wonder if anyone has thoughts on the constitutionality of requiring the purchase of health insurance. I saw an argument that requiring the purchase of health insurance impinged on a fundamental right, and thought that the better analogy was to the fundamental right to travel rather than to requiring a driver to purchase auto insurance. Just as the government (state or federal) cannot impose a fee for crossing state borders, so too the government cannot impose a fee simply because we happen to be alive. Mandatory auto insurance, on the other hand, is permissible because there is no fundamental right to a car or a driver's license. &etc.

Is this silly or does it have legs?
9.17.2009 1:57pm
Commentor (mail):
The way our economy has grown and consolidated, there is very little commerce that is purely intrastate, and it is difficult to think of many regulations that would not interfere with interstate commerce. Thus, the natural expansion of powers under the commerce clause.

One tacit problem with this guys' analysis is that, if true, Medicaid and Medicare would also be unconstitutional.
9.17.2009 2:07pm
Notmyleg (mail):
I'm not going to count every error, I think that Tom B did a fine job of that, but I will comment on my favorite. Lopez decided the commerce clause only applied to human activity. How, exactly, would the court have reached this question in Lopez? Did congress criminalize possession by robots? Who exactly was engaged in activity here besides humans?

Also, not sure what point people are making by saying that the commerce clause has been wrongly interpreted since the New Deal. That may be true (although even Thomas probably recognizes that battle is lost), but it has nothing to do with whether Napolitano's interpretation of Lopez has any basis in reality. What I wonder is, what lead Napolitano to this conclusion. Is he just bulshitting (he has some idea of what the case was about, but is just making up the holdings), is he just wrong (which makes him a very questionable legal commentator), or is he misrepresenting the case so that he can make his argument (which is just dishonest). I am inclined towards option 1, with option 3 being a possibility, it seems very unlikely, at least to me, that 2 would be correct.
9.17.2009 2:11pm
oledrunk3 (mail):
Would it be unconstitutional for the Federal Government to regulate a Plague?
9.17.2009 2:12pm
NowMDJD (mail):

Certainly abortion procedures are just as much interstate commerce as any other doctor provided diagnoses or treatment, so if privacy prevents regulation of abortion why wouldn't it prevent regulation of other medical treatment, etc.?

If I recall correctly, the law criminalizing dilatation and extraction for termination of pregnancy was based on the Commerce clause, and was upheld by the Supreme Court. Of course, what the SC addressed was not the power of Congress to justify regulation of partial birth abortion using the commerce clause, but whether such regulation imposed an undue burden on women seeking termination of pregnancy.
9.17.2009 2:13pm
Ben P:

But I can never remember which said what, what their individual effect on commerce regulation was, and what the resulting allowable commerce reg is. I'm hoping for a followup from Orin...


For lack of a clearer description, you can almost summarize it by saying that "interstate commerce means whatever congress says it means, except when it doesn't."

You can always come up with indivdual arguments regarding specific items, but it's tough to say that Morrison and Lopez actually changed the broad legal rules except to say that it doesn't apply to handguns and battered women.
9.17.2009 2:15pm
Ben P:

If the hacks in black had consistently followed the plain language of the Constitution, then there would be no question that Napolitano's assertions would be correct. There is nothing about health care that has an actual effect on commerce among the states as the term was understood in the late 18th century.


I suppose I'm being unnecessarily pedantic here, but where exactly in the constitution does it specifically define interstate commerce?

I mean I suppose 1824 isn't quite the "late 18th century" but is it really clear that the meaning of commerce drastically changed from 1790 to 1824 when Marshall wrote Commerce, undoubtedly is traffic, but it is something more—it is intercourse...T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines."


I'm not saying I agree with the current law, but asserting that the meaning of such a term is so plain goes too far the other direction.
9.17.2009 2:19pm
Houston Lawyer:
Mike R

While I don't support it, I don't see any constitutional problem with requiring someone to buy health insurance. This is in essence a tax and I don's think that it would voilate any recognized limit on Congress's ability to tax anything they can identify.
9.17.2009 2:19pm
peterepeat (mail):
During the 1870's and 1880's, the National Board of Health was set up to prevent the spread of yellow fever from southern ports to the rest of the country and it was viewed as an exercise of the commerce power. Quarantine laws were passed and funds were appropriated pursuant to the commerce power.

Forcing young people to buy insurance but dont want it would be rationalized as a way to control med costs and save the govt money. BS, but that would be the rationalization, and it would work, at least as far as the courts are concerned. In truth, it wouldnt control med costs, it would just result in young people being forced to contribute even more to health care for old people.

A more reasonable way to control health care costs: poll senior citizens and the poor re phasing out medicare and medicaid. If they object, fire them out of a cannon over the Pacific Ocean, one every ten minutes--day after day after day.

Health care cost problem solved in about eighteen months.
9.17.2009 2:20pm
Patrick216:
Fox's "judicial analysts" are Napolitano and that Larry Seidlen guy, who was the Florida probate judge in the Anna Nicole Smith case who cried on the bench. Fox has some first-rate commentators and analysts on its network; a shame they couldn't get someone a bit more clueful for this purpose.
9.17.2009 2:20pm
PeterWimsey (mail):
@Peterepeat "As I recall, there is a great deal of case law built up re the of states to require residents to purchase liquor or wine only in state."

Unfortunately, alcohol is something of a special case, as the 21st Amendment, in addition to repealing the 18th, provides:

"Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
9.17.2009 2:21pm
Anderson (mail):
I note that almost none of these comments answer Orin's question/challenge, and instead insist that the past 70+ years of commerce clause jurisprudence has been horribly wrong.

Prof. Kerr has always shown more interest in what the law is than in what he would like it to be,* and indeed seems to consider an excessive concern for the latter, at least when exercised from the bench, to be a risk factor for judicial activism.

____
* Almost unusually so for a law professor, one might even venture to suggest.
9.17.2009 2:22pm
PeterWimsey (mail):
@Orin -

So I assume your exams are issue-spotting exams? :)
9.17.2009 2:22pm
J. Aldridge:
Did the commerce clause apply to the slave trade? Madison felt it was “wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandise, consumed &c.

Mason observed the “particular slates might wish to encourage, by impost duties, certain manufactures, for which they enjoyed natural advantages, as Virginia the manufacture of hemp, &.c.”

Madison said the “encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other states in the Union, which would revive all the mischiefs experienced from the want of a general government over commerce.
Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other. -Monroe

Thomas Jefferson: “To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.”
9.17.2009 2:23pm
Justin (mail):
One that Tom missed - the federal government has been involved in the regulation of the practice of medicine (as used in context) for at least the the last 70 or so years - Medicare, federal funds and regulation of Medicaid, the FDA, ERISA, etc.
9.17.2009 2:24pm
Anderson (mail):
One tacit problem with this guys' analysis is that, if true, Medicaid and Medicare would also be unconstitutional.

He probably thinks that's a feature, not a bug.
9.17.2009 2:26pm
Justin (mail):
Oh, and a final issue - it may be that the Obama health care proposals could be independently justified under Congress's Taxing and Spending authority (think the federal drinking age law), even without resolve to the Commerce clause.
9.17.2009 2:26pm
J. Aldridge:
One that Tom missed - the federal government has been involved in the regulation of the practice of medicine (as used in context) for at least the the last 70 or so years - Medicare, federal funds and regulation of Medicaid, the FDA, ERISA, etc.

Unconstitutionally they been involved, yes. Isn't politics and a corrupt supreme court grand?
9.17.2009 2:27pm
govols:
Perhaps those commentators who assert without evidence that the Founders had a uniformly, or even primarily narrow conceptual view of "commerce" could provide some. In Ogden (admittedly not the Founding generation), for example, do you think Marshall was wrong to argue that navigation across state boundaries--i.e. regulation of a "channel" and "instrumentality"--was within the power of Congress?

Amar makes a good argument, for example, that the Framers had wanted the Commerce Clause to give Congress the power to solve collective action problems that the states were not capable of solving on their own. Potentially, the range of the power to solve these problems would increase as they increased. I admit Amar's case rests on relatively thin evidence, and would be genuninely interested from someone who knows something as to alternative arguments.

It's tempting to read one's libertarian sensibilities (or one's Christian sensibilites, or statist sensibilities, or whatever) back into the Constitution. But I suppose I'd like some argument, rather than just assertion. Isn't it possible, given the tremendous increase of interstate, commercial, collective action problems since 1789, that the Founder Fathers might have designed a Commerce Clause strong enough to solve them?

Finally, the op-ed's suggestion that health care is not "commercial" seems laughable. Haven't I heard from Republicans that Obama seeks to remake 1/6th of the national economy? Perhaps Napolitano should have his talking points in order.
9.17.2009 2:27pm
J. Aldridge:
In Ogden (admittedly not the Founding generation), for example, do you think Marshall was wrong to argue that navigation across state boundaries--i.e. regulation of a "channel" and "instrumentality"--was within the power of Congress?

Did Marshall say "any kind" of navigation? He may have been talking about coasting navigation which the national govt. controlled even under the artcles of confederation. As far as transportation between states that was always regulated by the states themselves.








Transportation from state to state was always regulated by the states and had nothing to do with regulating trade.
9.17.2009 2:37pm
NaG (mail):
Out of the blue question:

Could a Christian Scientist challenge universal health care, or a mandate to purchase health care, on the basis that it infringes upon their 1st Amendment right to freedom of religion?
9.17.2009 2:55pm
effay (www):
Where in Lopez does the Court discuss any effect of school safety being an historically state function or not? It sounds like Napolitano is really trying to somehow apply Usery as a defense to federal regulation of healthcare. If that's the case, I guess he's not familiar with Garcia.
9.17.2009 3:07pm
Adam Kamp (mail):
It occurs to me that the probable intent of the Commerce Clause (a fairly limited conception of what "commerce" entails) is completely at odds with the language. When the Founders intended some fairly restrictive definition, put very simply, they were wrong. They didn't recognize how interconnected all economic behavior is, and on the basis of that faulty belief they ended up drafting a clause that gave the government far more power than they intended.

So we're stuck with either giving a near-nonsensical definition of "commerce" in order to hew to a somewhat illusory legislative intent, or relying on what we now understand commerce to entail at a cost of almost completely betraying the importance of textualism.

It's sort of an ugly choice. The best option is to redraft the clause in a new amendment, but, well, good luck with that.
9.17.2009 3:08pm
sk (mail):
Sorry to beat a dead horse, and continue to not respond to the original question, but, at least in layman's terms, isn't Napolitano right-specifically, isn't medical care NOT interstate?

In getting medical care, you go to an office/hospital, interact with a doctor, nurse, or staff, and leave that office. (similarly, when you buy orange juice, maple syrup, or raisins, you go to a store, give a clerk money, and leave with orange juice, maple syrup, or raisins).

While it may be true that before the orange juice/maple syrup, and raisins got to your store, it had to cross state lines (from Florida, Vermont, and California), well, then that original transfer would be subject to congressional oversight. But the final transfer-from the store to you- didn't. And similarly, even if I use a drug from Texas, an Xray machine from Utah, and a bandaid from Ohio, well, the initial transfer may have been interstate commerce (from the factory to the office/hospital), but MY USE of those things was not.

This has all been discussed before, and derided ("Irwin Fletcher School of Interstate Commerce."). The problem with this derision is that, if you don't subscribe to the Irwin Fletcher School of Interstate Commerce, well then the Commerce Clause has absolutely no limits, because EVERYTHING YOU DO has some interstate component. If you drink water out of the river, or well in your backyard, you used parts in that well that were manufactured elsewhere. There is simply no human activity that requires any manufactured item that would not be subject to the interstate commerce clause (of course, there may be a very unusual exception-a fishhook made of metal mined in a state, with tools constructed in that state, using vehicles to transport it that themselves were entirely manufactured in that state using raw materials entirely gathered in that state, which were gathered using tools which themselves were entirely manufactured in that state, which..-nevermind. I think there is absolutely no exemption from my statement).

In other words, if the commerce clause it to have any (logical, consistent) limitations whatsoever, it has to be limited to actual interstate activity (selling an MRI machine across state lines): i.e. limited to the reasonably plain language of the statement-and not include indirect interstate activity (using an MRI machine that was previously sold across state lines).

The fact that courts don't award limitless power to the commerce clause doesn't prove that there is a (logical, consistent) interpretation wider than true interstate activity, but narrower than anything and everything under the sun. It merely proves that courts are making it up as they go along.

Sk
9.17.2009 3:22pm
J. Aldridge:
When the Founders intended some fairly restrictive definition, put very simply, they were wrong. They didn't recognize how interconnected all economic behavior is, and on the basis of that faulty belief they ended up drafting a clause that gave the government far more power than they intended.

Did it ever occur to you that to regulate commerce with nations, states and Indian tribes must mean the same thing? How was commerce regulated?
9.17.2009 3:23pm
Tim Nuccio (mail) (www):


Could a Christian Scientist challenge universal health care, or a mandate to purchase health care, on the basis that it infringes upon their 1st Amendment right to freedom of religion?


It's perhaps possible. The Amish opt out of social security.
9.17.2009 3:23pm
Tim Nuccio (mail) (www):

It's sort of an ugly choice. The best option is to redraft the clause in a new amendment, but, well, good luck with that.


I think that's precisely what would have to happen if we went back to Lochner. And I'd support such a move.
9.17.2009 3:24pm
Hauk (mail):

@Orin -

So I assume your exams are issue-spotting exams? :)



Now that you mention it, the challenge in Orin's post would make for a good Con Law I exam. Though I expect it might be too easy for most Con Law I students.
9.17.2009 3:28pm
JunkYardLawDog (mail):
To the commenters on my previous post:

What if Obamacare does have the effect of banning certain tests, procedures, or treatments that a doctor might otherwise want to perform? If your old and they won't allow a doctor to offer a hip replacement or won't allow some other possible life saving life extending treatment to be offered by the doctor? Wouldn't that be the equivalent of a law banning the abortion procedure being offered?

As regards partial birth abortion, the court still requires exceptions for the life and health of the mother. So wouldn't similar exceptions for the life and health of the patient be required so Obamacare couldn't keep a doctor from offering treatments and procedures that would possibly extend the life or preserve the mental well being of the patient.

As regards tax and spend authority, would a federal law that doesn't ban abortion but applies a $20,000 per abortion federal tax to be paid by the patient and collected by the IRS be constitutional?

the dog still has questions.
9.17.2009 3:30pm
GatoRat:
I agree that the founders "ended up drafting a clause that gave the government far more power than they intended" though I believe the reason was much more due to changes in language then a failure to understand economics. In short, the word "commerce" meant something different then, than it does now. The founders didn't have to define it because everyone already knew what it meant.

(The implications of this are interesting; what if the word "commerce" became a euphemism for sex? Then what?)

That said, since the intent was to create a federalist system with strongly separated powers, I think you'd have to be pretty daft to genuinely believe that the commerce clause in its modern day interpretation is remotely what the constitution meant.
9.17.2009 3:33pm
MarkField (mail):

In Ogden (admittedly not the Founding generation)


Marshall himself was a Founder. He was in the VA ratifying convention.
9.17.2009 3:36pm
Hauk (mail):
sk--


Sorry to beat a dead horse, and continue to not respond to the original question, but, at least in layman's terms, isn't Napolitano right-specifically, isn't medical care NOT interstate?


Well, in layman's terms, yes. But Napolitano isn't a layman--he's supposedly an "expert" whose viewpoint might be accepted by many laymen because of his supposed expertise (more so when his argument would seem logical to some laymen--though maybe not all).


The fact that courts don't award limitless power to the commerce clause doesn't prove that there is a (logical, consistent) interpretation wider than true interstate activity, but narrower than anything and everything under the sun. It merely proves that courts are making it up as they go along.


Napolitano wasn't taking a position about whether or not the Supreme Court's expansion of the Commerce Clause was correct or not, but was taking a position on whether the Obama healthcare plan is constitutional under that reading of the commerce clause. And he got it painfully wrong for someone who's supposedly an expert.

I wonder whether his distortion was intentional or a result of ignorance (or both).
9.17.2009 3:38pm
J. Aldridge:
In short, the word "commerce" meant something different then, than it does now.

So, regulating commerce with other nations and states must mean two different things? The regulation of commerce means the same thing today as it did in 1787.
9.17.2009 3:39pm
Steve:
What if Obamacare does have the effect of banning certain tests, procedures, or treatments that a doctor might otherwise want to perform? If your old and they won't allow a doctor to offer a hip replacement or won't allow some other possible life saving life extending treatment to be offered by the doctor? Wouldn't that be the equivalent of a law banning the abortion procedure being offered?

Are you postulating a law that prevents the patient from receiving the procedure even if he is willing to pay for it with private insurance or out of his own pocket? That is a long way away from anything under discussion as part of "Obamacare" but sure, people would have a perfectly legitimate argument against it from my point of view.
9.17.2009 3:39pm
Fenster McManus (mail):
"[T]he Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core."

Wow.

So much for regulating the channels and instrumentalities. Also, somehow I don't think that "truly commercial at its core" is meant to be coextensive with "activities that substantially affect interstate commerce."

It's amazing that he would write an op-ed for the WSJ without bothering to double check his half-assed recollections from 1L. Either that, or the entire thing was written in bad faith. Amazing. This sort of thing does no service to the Journal's credibility.
9.17.2009 3:44pm
Tom952 (mail):
We have had the federal government funding and regulating health care for qualified elderly residents for years through the Medicare programs. What's new is the attempt to provide health care for more people.
9.17.2009 3:47pm
Fenster McManus (mail):

One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health.


This makes perfect sense. I'm going to the gym in a little bit - but it's not to engage in commercial activity - it's to run on a treadmill. Then I will get a protein shake - but not to engage in commercial activity, heavens no - just to hasten the recovery of my muscles. Then I...
9.17.2009 3:52pm
J. Aldridge:
Tom952: Practicing a wrong does not make the wrong a right.
9.17.2009 3:53pm
Tatil:

What if Obamacare does have the effect of banning certain tests, procedures, or treatments that a doctor might otherwise want to perform?

What if Obamacare lines up everybody in small towns against a wall and shoot them so that the overall health care costs are reduced? Would that be constitutional?
9.17.2009 3:57pm
GatoRat:

The regulation of commerce means the same thing today as it did in 1787.


Well, clearly it doesn't else this debate wouldn't be happening. That aside, Commerce did mean sexual intercourse then and still does in a strictly legal and/or pedantic environment, but does not among common usage.

For the record: Webster's 1828 dictionary states:


1. In a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce.

2. Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life.

3. Familiar intercourse between the sexes.

4. Interchange; reciprocal communications; as, there is a vast commerce of ideas.


2009 American Heritage:


1. The buying and selling of goods, especially on a large scale, as between cities or nations. See Synonyms at business.
2. Intellectual exchange or social interaction.
3. Sexual intercourse.


2009 Random House is between the two:


1. an interchange of goods or commodities, esp. on a large scale between different countries (foreign commerce) or between different parts of the same country (domestic commerce); trade; business.


None of these definitions squares with the expansive definition being used by the Federal Government.
9.17.2009 4:10pm
gullyborg (mail) (www):
Here is another thing to consider: the judge's writing is an op-ed intended for a layperson audience. It is not a legal brief. Not to say that makes his writing "correct," but keeping this in mind, does it excuse the message considering that readers who never studied constitutional law might not really understand a "correct" article about the commerce clause and US v. Lopez?
9.17.2009 4:30pm
J. Aldridge:
GatoRat:

The power is "to regulate commerce" and not what the word "commerce" might mean. The framers all used words commerce and trade synonymously. The regulation of commerce was always through imposts and duties that dealt with the exchange of goods through imports or exports.

And never forget the remedy sought for including the words "among the states."
9.17.2009 4:31pm
mrcausality:
@GatoRat:

Is that intrasex or intersex commerce? The answer may have far reaching implications to the gay marriage debate.
9.17.2009 4:52pm
Bruce:
Napolitano's not a fan of the FDA either, I guess.
9.17.2009 5:09pm
Joseph Slater (mail):
I was debating whether to answer Junkyard Dog's question more like Steve answered it or more like Tatil answered it, then I saw Steve and Tatil's answers.
9.17.2009 5:17pm
Philosopher:
"Readers who never studied constitutional law" would have no problem understanding an article that wasn't riddled with errors. The author didn't just simplify the decision -- he got it completely wrong. He didn't bother to read the decision, or even the wikipedia page about the decision, before writing the op-ed.
9.17.2009 5:35pm
Hauk (mail):
gullyborg--

I've got to agree with Philosopher. And I'll add that the fact that the judge was writing an op-ed for a layperson audience makes his errors even more egregious, because laypeople without legal training are less likely to recognize his errors and to accept his argument as valid because of his supposed expertise.
9.17.2009 5:46pm
govols:
Mark Field: sorry, yes, didn't mean to imply otherwise. Just meant that Ogden was 35 years after the Commerce Clause was written.

J. Aldridge: I'm not sure adding in the Indian Commerce Clause makes the argument for a limited commerce clause stronger. The initial language for the power to regulate Indian affairs read "to regulate affairs" with the Indians, and was later rolled into the Interstate Commerce Clause. I'm not sure why it's obvious that this act was a limitation on the Indian clause, rather than a sign that the meaning of "commerce" was broader than just "trade."

Nevertheless, I agree with Adam Kamp and even GatoRat that the modern commerce clause presents us with a difficult choice: to have a federal government with essentially no enumerated limits, or one that lacks the power necessary to deal with a modern economy. Being a liberal, I fear the latter more than the former, and think that the number of collective action problems the states now face dwarf those faced by the Founding Fathers. In the drive to allow insurance purchasing across state lines, for example, I haven't heard anyone talk about a federal law that would prevent a race to the bottom, where every health care insurer is located in Delaware.
9.17.2009 5:50pm
Adam J:
GatoRat- How exactly don't your dictionaries square with the "expansive definition" of the federal government? Your 1828 Webster dictionary has an very expansive definition if you ask me. The only thing the dictionary seems to be omitting is it should include exchanges between legal entities as well.
9.17.2009 5:52pm
Anderson (mail):
What if Obamacare lines up everybody in small towns against a wall and shoot them so that the overall health care costs are reduced? Would that be constitutional?

Well, the townsfolk would obviously have notice, and provided they're also afforded an opportunity to be heard before the shooting starts, then sounds like it's peachy.

... What's that? Substantive due process? BEGONE, HEATHEN!!!
9.17.2009 6:10pm
Pauldom:

Could a Christian Scientist challenge universal health care, or a mandate to purchase health care, on the basis that it infringes upon their 1st Amendment right to freedom of religion?

I don't think Christian Scientists can opt out of Medicare, but then, they can use Medicare to pay for custodial care at "Christian Science Sanitoria," where no actual medical care is provided. Perhaps they would prefer for national health insurance to pay for the prayer treatments of CS practitioners, rather than opting out.
9.17.2009 6:13pm
ChrisTS (mail):
Anderson:

Yay! We never execute [legally] innocent persons.
9.17.2009 6:15pm
Arkady:

One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health.


So, national gym chains are not subject to the Commerce Clause?
9.17.2009 6:22pm
J. Aldridge:
So, national gym chains are not subject to the Commerce Clause?

That is right because there is no exchange of trade that a state is imposing imposts or duties upon.

If a national gym falls under the regulation of commerce so would gyms within other countries.
9.17.2009 6:34pm
Disintelligentsia (mail):
It seems that most posters here are of the opinion that Gonzales v. Raich overruled the Lopez and Morrison decisions. However,Gonzales was a narrow decision regarding producers of a consumable product and their cumulative effect on an interstate market (even if it is an illicit market) and Congress's right to regulate that market. Lopez said "Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce." Someone carrying a gun within 1,000 feet of a school does not undercut Congress's regulation of commerce in guns - the market was not affected. However, in Gonzales, people growing marijuana could, as in Wickard, have an aggregate effect on the marijuana market. In Morrison, the Court basically stated that domestic violence has too attenuated an effect on commerce to be the subject of regulation by the feds.

So, in essence, the Court in Gonzales was trying to save Wickard AND Lopez by distinguishing between activities that may have an direct effect on interstate commerce (however small) and those activities that can only be said to have an indirect effect on commerce (i.e. gun's around schools and domestic violence).

The Court in Lopez and Morrison stated "in every case where we have sustained federal regulation under Wickard's aggregation principle, the regulated activity was of an apparent commercial character." Hence, people carrying guns around schools and domestic violence, not having even an "apparent" commercial character, are not properly the subject of regulation under the Commerce Clause.
9.17.2009 6:41pm
Disintelligentsia (mail):
In follow-up to my prior comment, another poster stated that he had followed post-Lopez cases to see if the reworded version of the Gun-free school-zone Act had been successfully challenged. If I were a defense attorney involved in a case regarding 18 U.S.C. § 922(q), I would not hesitate to appeal based on Lopez because Congress was pretty clearly stacking inferences and the connection between school violence and the regulation of the gun market is far too attenuated. Morrison explained that "our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated" and the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. That Congress amended 18 U.S.C. § 922(q) to include findings making the impact on national commerce explicit rather than implicit hardly means that the Court will agree with those findings. The Court stated "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. . . . Rather, " '[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.' "
9.17.2009 6:44pm
Phatty:
Tom B, why the brackets around "1,000 feet"? I thought that was the defined school zone distance in the statute.
9.17.2009 6:45pm
Michael T. Drake (mail) (www):
Then again, Napolitano is from Jersey.
9.17.2009 6:50pm
Arkady:
@ J. Aldridge



So, national gym chains are not subject to the Commerce Clause?



That is right because there is no exchange of trade that a state is imposing imposts or duties upon.


Perhaps. But Napolitano's argument implies that when I go to a gym, after having paid my monthly or yearly fee, I'm not engaging in a commercial activity because I'm there to improve my health. That's what I was getting at.
9.17.2009 7:05pm
wolfefan (mail):
Hi -

SK:
Sorry to beat a dead horse, and continue to not respond to the original question, but, at least in layman's terms, isn't Napolitano right-specifically, isn't medical care NOT interstate?

In getting medical care, you go to an office/hospital, interact with a doctor, nurse, or staff, and leave that office. (similarly, when you buy orange juice, maple syrup, or raisins, you go to a store, give a clerk money, and leave with orange juice, maple syrup, or raisins).

While it may be true that before the orange juice/maple syrup, and raisins got to your store, it had to cross state lines (from Florida, Vermont, and California), well, then that original transfer would be subject to congressional oversight. But the final transfer-from the store to you- didn't. And similarly, even if I use a drug from Texas, an Xray machine from Utah, and a bandaid from Ohio, well, the initial transfer may have been interstate commerce (from the factory to the office/hospital), but MY USE of those things was not.


Would it be different for you if I travel from my Northern Virginia home to the Cleveland Clinic for a procedure, or to a hospital in DC (as regularly happens here?)
9.17.2009 7:56pm
J. Aldridge:
But Napolitano's argument implies that when I go to a gym, after having paid my monthly or yearly fee, I'm not engaging in a commercial activity because I'm there to improve my health.

Well if you go to a doctor or gym you are not going there to import or exports articles of trade where the state might decide to lay duties upon another states imports/exports. That is the limit of the regulation of commerce - if it was more than that then it would start wars if congress decided to pass laws creating gun free zones throughout Europe or criminalize the selling of wine.

I think you are confusing regulating commerce with laws for buying and selling (which the courts love to do themselves, not understanding why that does not work.)
I will only mention here, as it is perfectly within my recollection, that the power was given to Congress to regulate the commerce by water between the States, and it being feared, by the Southern, that the Eastern would, whenever they could, do so to the disadvantage of the Southern States (impose tariff’s), you will find, in the 6th section of the 1st article, Congress are prevented from taxing exports, or giving preference to the ports of one State over another, or obliging vessels bound from one State to clear, enter, or pay duties in another; which restrictions, more clearly than any thing else, prove what the power to regulate commerce among the several States means. --Charles Pinckney, 1820
9.17.2009 8:08pm
NorthernDave (mail):
Thanks for putting it so well, Disintelligentsia....

I wonder if Orin would be so kind as to delimit his opinion on the errors in the article. I find a few emotionally charged subjective comments like, "The Supreme Court finally came to it's senses", which is a statement of opinion. Other than that it would appear that Napolitano has tried to compactify a great deal of legal language into a set of much too simple sound bites. The first paragraph deals with the Supreme Court's recognition of the limits of the Commerce Clause.
The problem with the second paragraph IMHO is that most comments so far have been dealing with the commercial realities that have nothing to do with someone seeing their local (emphasis on local) health care provider. As far as he goes Napolitano is right. The Founding Fathers would never have dreampt of interfering with a local doctor's visit using the Commerce Clause.
Now they would have brought it down like a hammer on cross state line shipments of rubber gloves, though, wouldn't they. Would anyone care to argue that Insurance is not a commercial venture?
What would Adam Smith say?! (Probably that this is what we get for ignoring Hemp production.......)

I think this op-ed was just written too quickly. Which of us hasn't done that?
9.17.2009 8:11pm
Arkady:

I think you are confusing regulating commerce with laws for buying and selling (which the courts love to do themselves, not understanding why that does not work.)


I was just making the, what I thought was, simple point that doing something for your health can be considered a commercial transaction, contra the judge.
9.17.2009 8:24pm
bud (mail):
IANAL, but when I was edumacated back in the dark ages, all the discussion I heard (in high school Civics and college Poli Sci) about the Commerce clause was that it was intended to slap down one of the things that was pulling the "United" States apart under the Articles of Confederation: the imposition of tariffs between the states. This argues for a narrow interpretation of the regulatory power of the federal government, dealing only with trade - the actual movement of goods (and perhaps services) across state lines, not ancillary effects.

It certainly makes more sense than saying, essentially, it's meaningless.
9.17.2009 8:54pm
David M. Nieporent (www):
Well, clearly it doesn't else this debate wouldn't be happening. That aside, Commerce did mean sexual intercourse then and still does in a strictly legal and/or pedantic environment, but does not among common usage.
GatoRat: don't encourage Aldridge. Like a tax protester, he figures that pulling a few random quotes out of context and pretending they apply to some completely random other situation constitutes constitutional interpretation.
9.17.2009 10:22pm
David M. Nieporent (www):
In the drive to allow insurance purchasing across state lines, for example, I haven't heard anyone talk about a federal law that would prevent a race to the bottom, where every health care insurer is located in Delaware.
Why on earth would you need that? Do you need a federal law to prevent all computer manufacturers from locating themselves in Delaware and selling 1 MHz machines with 286 chips as their only offerings? "Race to the bottom" is just liberal code for "will offer what consumers want rather than what liberals think consumers should want."
9.17.2009 10:25pm
Guy:
Sigivald:

I suspect very strongly that all of them [the Framers] would have been shocked by the idea of Congress regulating going to a doctor, because you paid the doctor.

Jefferson would no doubt be shocked, though I suspect Hamilton would be quite pleased.
9.17.2009 11:32pm
http://volokh.com/?exclude=davidb :

don't encourage Aldridge. Like a tax protester, he figures that pulling a few random quotes out of context and pretending they apply to some completely random other situation constitutes constitutional interpretation.

You beat me to that comparison. Aldridge's reasoning is eerily evocative of the guy who thinks paying income taxes is voluntary.
9.18.2009 12:52am
J. Aldridge:
David M. Nieporent wrote: "GatoRat: don't encourage Aldridge. Like a tax protester, he figures that pulling a few random quotes out of context and pretending they apply to some completely random other situation constitutes constitutional interpretation.

First of all, have I ever made any wild theories against paying taxes? Just once? I protest spending and pork, but never weird theories for avoiding taxes.

Secondly, you hate my quotes because they disprove current constitutional interpretation.
9.18.2009 1:11am
Jon Roland (mail) (www):
J. Aldridge:

It would be helpful if people cited their quotes:


Did the commerce clause apply to the slave trade? Madison felt it was “wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandise, consumed &c.”

Constitutional Convention, August 25, 1787.


Mason observed the “particular slates might wish to encourage, by impost duties, certain manufactures, for which they enjoyed natural advantages, as Virginia the manufacture of hemp, &.c.”

Constitutional Convention, August 28, 1787


Madison said the “encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other states in the Union, which would revive all the mischiefs experienced from the want of a general government over commerce.”

Constitutional Convention, August 28, 1787



Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other. -Monroe

Message to the House of Representatives of the 4th of May, 1822, containing his objections to a bill entitled "An act for the preservation and repair of the Cumberland road." Cited here by James Polk.


Thomas Jefferson: “To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.”

Jefferson's Opinion on the Constitutionality of a National Bank, 1791.
9.18.2009 1:26am
Jon Roland (mail) (www):
Ben P:

... where exactly in the constitution does it specifically define interstate commerce?

It doesn't, but the common usage in 1787 was to refer to the items on which newspapers of the time published price reports. Many newspapers consisted of almost nothing else. The quoted prices were on tangible trade goods, not services or activities of traders. It did include shipping costs for various items. Thus we get the Monroe quote.

It is important to keep in mind that present statute and jurisprudence is not based on redefinitions of what is "commerce", but on what is "necessary and proper", not to exercise a power, but to get a desired result. Those are the key points of departure from original understanding. For more on this see

Barnett
Roland
9.18.2009 1:44am
Jon Roland (mail) (www):
J. Aldridge:

Did Marshall say "any kind" of navigation?

No, he didn't. He was reaching for the concept that commerce was tangible commodities the title and possession to which was transferred from a vendor outside a state to a purchaser within it. Transport is involved in that, but only to the extent that it completes the definition, and it is subject to regulation only to the extent necessary and proper to identify it as conveying commercial items, such as by requiring passage through ports of entry and inspection stations.
9.18.2009 1:54am
J. Aldridge:
^^^ I think Marshall was talking coasting trade.
9.18.2009 2:24am
MarkField (mail):

Mark Field: sorry, yes, didn't mean to imply otherwise. Just meant that Ogden was 35 years after the Commerce Clause was written.


In that case, I agree with you.
9.18.2009 5:50am
cboldt (mail):
-- If I were a defense attorney involved in a case regarding 18 U.S.C. § 922(q), I would not hesitate to appeal based on Lopez because Congress was pretty clearly stacking inferences and the connection between school violence and the regulation of the gun market is far too attenuated. --
.
FWIW, see US v Danks, 221 F3d 1037 (8th Cir. 1999), where a federal grand jury charged Danks with possessing a firearm within 1,000 feet of a school, in violation of 18 U.S.C. 922(q)(2)(A); and the 8th Circuit upheld the charge against a challenge that the statute was unconstitutional.
.
There is also US v Tait, 202 F.3d 1320 (11th Cir. 2000) (indictment dismissed on grounds other than defect in federal jurisdiction).
.
h/t to Nelson Lund, see cboldt @ 6.6.2009 8:36am, and comment in that thread by Brett Bellmore that in Danks, "The court specifically upheld the law in that case because the gun HAD traveled in interstate commerce."
.
The interstate traffic status of an individual weapon doesn't affect the outcome of your argument, which operates regardless of the commercial history of the gun.
9.18.2009 8:33am
JunkYardLawDog (mail):
Steve, yes that is certainly one way to postulate what I said. That is in fact the Canadian system. It is against the law to buy or sell medical care outside of the government run system.

Following up. Suppose Obamacare doesn't allow abortion, and its only available to be offered by paying for it outside of the plan. Suppose Obamacare doesn't allow birth control and it can only be had by paying for it outside the plan. In either situation do you really think there wouldn't be numerous challenges to this on one or more constitutional bases? If it works for abortion why shouldn't it work for hip replacements?

As for the non-serious childish replies of a couple others...grow up and open your minds to thoughts not your own.

Says the "Dog"
9.18.2009 10:04am
Disintelligentsia (mail):
cboldt - Thanks for the cites. They were helpful. As to the analysis:

US v Danks, 221 F3d 1037 (8th Cir. 1999): The 8th circuit could not have done a more shallow analysis of Lopez if it tried. It states, in conclusory manner that Lopez found the Act unconstitutional because "the original Act lacked a "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce." However, this is only one aspect of Lopez and even this aspect militates against the Court's decision. How does the possession of a gun within 1,000 feet of a school affect interstate commerce?

While it was in interstate commerce, Congress had the authority to regulate it, but once purchased by the end user it ceased to be in interstate commerce and Congress' regulatory power ended. The Court asserts, without cite to legal precedent (or logic for that matter), that because a gun moved at some time within interstate commerce that it affects (present tense) interstate commerce and that makes everything copacetic with the Constitution and the Commerce clause. There was not even the slightest attempt at legal reasoning - the 8th circuit basically said "A therefore E" without bothering with B,C and D. The 8th Circuit's decision was wholly irrational.

The Danks Court completely ignored what the Supreme Court said just a couple of paragraphs before the section they quote:

Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.
and

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.

and

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms.

and

To uphold the act "we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power"


IT'S RIGHT THERE FOR GOD'S SAKE! -- the Supreme Court stated a finding of fact - possession of guns in "school zones" does not involve economic activity and is not the proper subject of regulation under the Commerce clause. How can the 8th circuit simply ignore that finding in favor of Congress's conclusory finding? Lopez's second footnote stated:

"[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so" (quoting Hodel) and "[W]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court" (quoting of Heart of Atlanta Motel)


The 8th circuit abdicated it's judicial function out of deference to Congress (probably because of the presumption that an acts of Congress are constitutional) and never bothered to analyze whether the gun possession in question had a nexus with interstate commerce..

The Lopez Court said the affect on interstate commerce must be substantial in order for Congress to regulate it. It further said that the jurisdictional element that must be reached is not whether the gun traveled in interstate commerce but that it's possession affects interstate commerce. ("§ 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.") How does someone possessing a gun within 1000 feet of a school substantially affect interstate commerce????

Tait: There was no analysis of the jurisdictional element under Lopez in this case and it has nothing to do with the commerce clause. The Court in this instance found that the indictments should be dismissed because the party charged qualified for exceptions to 922(a) and 922(q) because he was licensed to carry a concealed weapon.

Of greater concern to me is Scarborough v. U.S. 431 U.S. 563. In that case, the SCOTUS did find that the fact that a gun merely traveled in interstate commerce at some point in the past does give Congress power to determine who may possess the gun at any time in the future (in this instance, possession by felons). I think that by its terms Lopez narrowed or overruled that decision but it was not discussed at all by the SCOTUS in Lopez.
9.18.2009 2:32pm
J. Aldridge:


... where exactly in the constitution does it specifically define interstate commerce?

It doesn't, but the common usage in 1787 was to refer to the items on which newspapers of the time published price reports. Many newspapers consisted of almost nothing else.

But that has nothing to do with the evil the regulation of commerce between the states accomplished. It was to prevent one state from taxing the imports/exports of another state as they passed through the jurisdiction of the non-taxing state.
9.18.2009 2:47pm
Jon Roland (mail) (www):
J. Aldridge:

But that has nothing to do with the evil the regulation of commerce between the states accomplished. It was to prevent one state from taxing the imports/exports of another state as they passed through the jurisdiction of the non-taxing state.

Not "passed through" but "passed into". Indiana, Illinois, or Wisconsin would not have grounds for taxing or regulating tangible commodities (commerce) sent from Lower Michigan to Upper Michigan or vice versa, overland rather than directly by boat.

However, the "evil" you cite was still only about tangible commodities themselves, not services, information, financial instruments, or the activities of the traders other than shipping. It also did not apply to primary extraction, manufacturing, retail sales within a state, possession, use, or disposal of anything. Nor to whether the producer used child labor or didn't pay his workers enough or worked them too long hours. It certainly did not include whatever might have a "substantial effect" on commerce.

Once again, what the "effect" argument does is invoke the Necessary and Proper Clause, not change the definition of "commerce" (although that had also been done to extend it to some of the things listed above). And it stems from changing the definition of "power", especially the power to "regulate", from "making a certain kind of effort" to "doing whatever it takes to get a desired outcome", namely, "regularity". That was not the original meaning of "power" at all. If we admit that a power is to get a desired outcome, and that any power needed to get that outcome is necessary and proper, then the enumeration of powers ceases to make sense. Government would have unlimited power to do whatever it wants to achieve "good", whatever that means. Even state police powers are not that expansive.
9.18.2009 3:38pm
Chuck (mail):
OK — Let's see if I understand this:

Commerce involves ONLY goods, products, merchandise and commodities that are, in some fashion, consumable. Thus the exchange or sale of food, machinery, weapons, and medical supplies count as commerce.

Therefore, provision of services are Not commerce. Sale and exchange of knowledge based intangible property, such as medical decisions and access to gymnasium environments cannot count as commerce.

Since Congress may regulate only commerce Among the States, these should be beyond Congressional authority. However, by Wickard and Raich, the process of doing something which MIGHT affect interstate commerce is presumed to be within the Commerce Clause jurisdiction.

So - Quilting Bees, Bake Sales, and (forget the third one) are now under Federal jurisdiction because somebody in another state may want to sell you a quilt or a pie.

Have I got that right? Bleah.
9.18.2009 8:43pm

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