The Congress Can-Do-Whatever-it-Wants Power

As I’ve argued several times before, the Supreme Court’s conservative majority will not uphold the individual mandate if the mandate’s defenders are unable to come up with a limiting principle that will prevent a decision upholding the law from eviscerating any remaining limits on Congress’s power to regulate interstate commerce.  (Which is not to say that the majority will necessarily uphold the law if such a limiting principle is articulated).

I leave it to those who have studied the briefs in detail to discuss whether the government and its amici have come up with such a principle.  But with friends like New York Times columnist Linda Greenhouse, they don’t need enemies.  Greenhouse:

If  the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

Greenhouse’s reasoning is sloppy.  First, Wickard v. Filburn didn’t apply to “backyard” wheat growing, the farm in question was a large commercial operation, and the wheat in question was fed to the farm’s cattle, who were sold on the interstate market.  But more important, Wickard and Raich were both as-applied challenges, while the challenge to the individual mandate is a facial challenge.

So what Greenhouse is arguing is that because the Supreme Court has in the past refused to countenance as-applied challenges that sought to exempt local activity from a concededly broader scheme of the regulation of interstate commerce, facial challenges to laws that on the grounds they don’t regulate interstate commerce to begin with are also out of bounds.  In other words, Congress can do whatever it wants, at least so long as it identifies an important economic “sector” to which its regulation pertains.

In the health care area, can Congress in fact require everyone to eat broccoli? Exercise twice a day in government-run health care facilities, with a government-mandated exercise program? Prohibit people from picking wild blueberries for their own consumption?   According to Greenhouse, Congress can do any of those things, even though there is no commerce, much less interstate commerce, involved, so long as it can argue that by doing so it’s really trying to regulate the “health care sector.”

Maybe it’s a good idea to give Congress the power to regulate whatever and however it wants, though I really doubt it.  More to the point, I’m quite sure that the conservative majority is not willing to endorse the proposition that the commerce power is really the Congress-Can-Do-Whatever-it-Wants Power.

Bonus foolishness from Greenhouse: She touts Nancy Pelosi’s infamous “Are you serious?” response to questions about the ACA’s constitutional basis as evidence that the ACA is in fact constitutional, as opposed to what is really is, evidence that Pelosi and her allies treated the idea that the health care law needed to be within Congress’s enumerated powers with thinly-veiled contempt.  As I discussed here (with further examples of such contempt), this in turn is a very good reason for the Court not to defer to Congress’ view of the scope of its commerce power, though of course lack of deference doesn’t dictate the outcome one way or the other.

James Taranto and Ed Whelan also have sharp words for Greenhouse.

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