Jeffrey Rosen has a nice bit of sophistry in The New Republic. He suggests, perhaps correctly, that Justices Kennedy and Roberts, were asking the government to point to a limiting principle--something which would allow Obamacare, but would nonetheless not allow the federal government legal authority to do whatever it wanted. Unfortunately, he says:
[Soliciter Genera] Verrilli's error was substantive: He failed squarely to answer Roberts and Kennedy's repeated questions about what limits he envisioned to Congress's power to regulate interstate commerce. Verrilli's evasions weren't only unhelpful--they were also unnecessary.
Rosen suggests that there is an obvious limiting principle, one that can be discovered in the founding. "In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women," he notes, "the Court has drawn a distinction between activity that is truly local and activity that is truly national."
More generally, he quotes a new book by Neil S. Siegel suggesting that the federal government was designed to address any problem that was not local in nature:
"The Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce." Siegel argues that "to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action."
Balderdash! If that was the meaning of the commerce clause, it would not say: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Rosen's argumen views the Constitution from 30,000 feet. Its particular details fade into nothingness and it becomes a plenary grant to address any issue that Rosen thinks is a national one.
Consider some constitutional arguments of the founding era. In that era, we should note, it was an open question whether the federal government had the authority to build roads, canals, and other such projects. President Madison thought it might be, but in the end, he decided that such projects required an amendment, which he supported. Whigs disagreed with that. But if internal improvements were constitutionally controversial, it is hard to claim that there would have been any discussion of whether the federal goverment may regulate my visit to my doctor.
In his Opinion on the Constitutionality of the Bank, Hamilton said that Congress may create a corporation to fulfil the powers listed in Article 1, section 8. Among those he listed was the commerce clause. After all, creating and managing a national circulating medium is a national act, by definition. The key question between Hamilton and Jefferson turned on whether Hamilton was correct to infer a power to create a corporation in the service of the enumerated powers. It was self-evident that the object was national in scope.
But Hamilton noted that there were very real limits:
The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city
The federal government, even Hamilton, the man with the most expansive understanding of federal power at the time, argued, did not have a general police power. And what is the police power, classically speaking, the power to regulate health, safety, and morals and other such things. But Rosen wants to say that, under modern conditions, my visit to my doctor is a national concern. Ha! To be sure, my doctor may buy products that are shipped interstate. And if the federal government allowed it, it might be possible to buy heath insurance across state lines (that would be nice). In those cases there would be interstate commerce. By my visit to my doctor is hardly interstate commerce--unless we allow, as Rosen implies, that there is no such thing as intra-state commerce.
And that brings us to another celebrated case--Gibbons v. Ogden. That case involved the grant, by the State of New York, of a monopoly of shipping on the Hudson river. The Court ruled, not unreasonably, that the Hudson is not an intra-state waterway. ItJus has borders on New York and New Jersey, and it ends at the Atlantic Ocean. Hence such a monopoly grant was illegal.
This case matters because people on the Left often cite Justice Marshall's opinion to justfy an expansive reading of federal power. Justice Sotomayor quoted it from the bench this week. But we need to keep in mind that the case involved shipping on a waterway that borders on more than one state, and that ends at the ocean. We should also read more closely what Marshall actually said:
Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.
A clause that grants the federal government power regarding commerce among the states necessarily implies that there is such a thing as commerce that is local--the very thing that Rosen says does not exist. To be sure, he points to "previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women." But close observers will note that those are not commercial activities at all. If my visit to my doctor is interstate commerce, then there is no commerce that is not interstate.
If that is what the people want, there is a simple remedy, one consistent with the constitution. Amendment. But somehow the amendment clause falls by the wayside in pursuit of the public good.
Rosen's argument is that under current circumstances the health care market is national. H quotes a Representative from Massachusetts:
A national mandate would free Massachusettes[sic] from being "forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance."
But others might reply that Rosen is attacking the notion that the states in our federal system are laboratories of democracy. They will have diverse laws, and many different approaches to health care policy. He suggests that a state that passes a policy may not suffer from competition with other states. In other words, he presumes what he is concluding--that health care is naturally a national market.
And that brings us to a point that Walter Russell Mead makes eloquently. America's health care system is simply too large and complex to be regulated by a bureaucracy in Washington that creates a uniform set of rules for a country as large and diverse as the United States. Even by his own living constitution model, therefore, Rosen's argument fails.