Court challenges will fail; federalism is dead

If you don’t like political commentary, don’t read this.

“It is illuminating for purposes of reflection, if not for argument, to note that one of the greatest ‘fictions’ of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to ‘regulate Commerce … among the several States,’ one could easily get the sense from this Court’s opinions that the federal system exists only at the sufferance of Congress.”—William Rehnquist writing in a concurring opinion Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc.
452 U.S. 264, 101 S.Ct. 2389 (Mem)

The federal system exists only at the sufferance of Congress. Doubt that? The health reform bill is a massive intrusion of federal power into private and local matters. While some states and individuals will challenge the constitutionality of the congressional action, chances of a victory are slim.

According to the Washington Post, “the Supreme Court has long allowed Congress to regulate and prohibit all sorts of ‘economic’ activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that’s how the court would probably view the regulation of health insurance.”

Without a doubt this is correct. Insurance is an economic activity that could easily be found to influence commerce between the several states. The Supreme Court reasoned that water which often is not property in the traditional sense, but often is subject only to a “usufructuary right” was an element of commerce because it was important to agriculture, and agriculture is involved in interstate commerce. (In Sporhase v. Nebraska, the court struck down a Nebraska law that prohibited the exportation of water without a permit as an unreasonable interference in commerce because the statute required reciprocity before the issuance of a permit. While not a perfect example, it struck me at how far afield from traditional elements of commerce that the court has traveled. Rehnquist in dissent wrote, “‘Commerce’ cannot exist in a natural resource that cannot be sold, rented, traded, or transferred, but only used.”) If Commerce exists in something like this, then commerce must exist in everything. What then are the limits of Congressional power?

But things get worse. Also, according to the Post, “The individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying ‘cash for clunkers’ is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.”

Does Congress have the power to require this? The question centers on the exact nature of the power to regulate commerce. If we conclude that insurance is subject to Congressional regulation, and the court precedent seems clearly to indicate it would fall under the expansive Commerce Clause powers, how far does congressional power extend? Unfortunately, the power is limitless. Chief Justice John Marshall wrote in Gibbons v. Ogden that the federal commerce power was “plenary,” or “limited only by the ‘wisdom and discretion of congress, their identity with the people, and the influence which their constituents possess at elections.” (Quote from the American Constitution: Its Origins & Development Seventh Edition. The actual quote in Gibbons v. Ogden was more verbose.)

How limited can “plenary” power be? Will any court reason that Congress has finally exceeded its authority to act? Or will the courts declare this a political matter?

The trend seems to indicate it would be a political matter and the courts would refrain from intrusion. This seems a radical departure from the system created by the founders. The Constitution of the United States created a system of limited government; the national government was limited to powers delegated to it via the constitution, and state governments were also restrained through the Contracts Clause and through delegation of Commerce powers (and other powers) to Congress.

However, the health reform bill ends any notion of limited government.

The Rubicon has been crossed. Don’t expect the courts to do their job. The only hope is the ballot box.