Power of the Commerce Clause

The interpretation of the Commerce Clause of the U.S. Constitution has been a wild ride with serious implications. The clause grants Congress the power to “regulate commerce . . . among the several States”. For decades it has been used to justify the federal government’s regulation of certain aspects of the economy. Recently, ObamaCare legislated the individual mandate, which will fine people for not obtaining health insurance beginning in 2014. The administration points to the Commerce Clause as their Constitutional right to impose the individual mandate and referred to the fine as a “tax” in court to defend the action as government’s “power to lay and collect taxes”.
Arguments over intent of the Commerce Clause, and its practical application to modern America, have gone on for years. But it isn’t really subjective intent of the founders that matters here. It is words on the page, and what those words meant in the context of their time to the people who would vote to ratify the Constitution. At the time of the founders, “to regulate” meant to “make regular”. In other words, to prevent states from imposing trade barriers on each other. And, in fact, “commerce” at the time meant “trade”. So industry wasn’t subject to federal trade concerns until beaver pelts were being sent across state lines.

The Commerce Clause in Constitution is pretty clearly written to make interstate commerce regular. Ironically, this has been one major thorn in the side for affordable health insurance. Each state has its own health insurance mandates and rules. They protect domestic insurers from competition by barring entry to products licensed by other states. Some states require that you pay for more expensive policies with coverage you don’t want, such as acupuncture or chiropractic. The end result is state-by-state health insurance oligopolies.

In the world of legal medical marijuana in California, the feds involve themselves by shutting down dispensaries or busting individual citizens for smoking medical marijuana at home. It is deemed an “economic activity” and justified by their interpretation of the Commerce Clause. As the administration fights the flurry of state lawsuits coming in for the individual mandate, and California braces for a vote on Proposition 19 in November to legalize marijuana, we’ll all see just how far the feds can stretch the Commerce Clause.

Some people think the Constitution should have little to no bearing over modern governing. After all, times have changed. But if the words in the Constitution mean nothing, or whatever today’s courts want them to mean, government has a license to do whatever they want; or certainly extend themselves into what should be our private lives.