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In the first 5 installments (Blog 1, Blog 2, Blog 3, Blog 4, Blog 5) of this 8 part series of blogs, we examined the Democrats' individual mandate on health care through the lens of a strict textual reading of the Constitution. And in our most recent installment (Blog 6), we saw how over 200 years worth of Court decisions handed down by activist judges have altered the nation's understanding of Congress's power, "to regulate commerce… among the several States." But in recent years, the Court has shifted away from the loose Commerce Clause reading of past judges and back toward a narrower, more textual understanding of Congressional authority.
Section 8: The Recent Shift Toward a Narrower Understanding of the Commerce Clause
Talking with C. Boyden Gray, Co-Chairman of the FreedomWorks Foundation and Former United States Ambassador to the European Union, I asked him whether or not he believes that a federal mandate on health insurance will be upheld by the Supreme Court. “I don’t believe that it is an easy call one way or the other,” he replied. “But the Court has shown that it is willing to strike down intrusive legislation. It struck down legislation under FDR and it has struck down recent attempts to expand federal power.”
In 1994, a senior at a San Antonio high school named Alfonzo Lopez brought a concealed weapon onto school property. The federal government charged Lopez with violating the Gun-Free School Zones Act of 1990. In part, the act forbids:
...any individual knowingly to possess a firearm at a place that [he] knows... is a school zone.
After being found guilty, Lopez challenged the Act asserting that the Commerce Clause did not grant Congress the authority to regulate gun possession on school grounds.
In defense of its regulation, the federal government argued that the possession of a gun on school property affected interstate commerce in a couple of ways.
First, the possession of a gun on school grounds would likely lead to a violent crime, which would in turn cause expensive damages. Such a crime would also raise insurance costs and limit the willingness of outsiders to travel to an area that they viewed as unsafe which would in turn lead to a weaker local economy. And the government asserted that the possession of a gun on school grounds would cause students to feel unsafe while at school which would disturb the learning process and, in turn, would lead to a less educated work force and weaker national economy.
In the opinion of the Court, Justice Rehnquist writes:
The possession of a gun in a local school zone is in no sense an economic activity that might… substantially affect any sort of interstate commerce… To uphold the Government's contentions here, 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… Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action... but we decline here to proceed any further. To do so would require us to conclude… that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.
Unwilling to further expand the powers granted to Congress by the Commerce Clause, the Court refused to allow the federal government to regulate the mere possession of an object in a designated area. Recognizing that past case law had stretched the constitutionally granted authority of regulation, Rehnquist makes note of the fact that the Clause does still limit congressional power.
In his concurrence with the decision, Justice Thomas opines the fact that case law has “departed from the original understanding” of the Commerce Clause but also recognizes that the Clause does still hold some limitations on federal authority. He states as a matter of fact:
...it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession...
The Court’s acknowledgement that Congress’s regulatory powers are still restrained by the Commerce Clause is a hopeful sign that the complete dismissal of the Clause which would be necessary in order to uphold the individual mandate may be rejected.
In 1994, a student at Virginia Tech, Christy Brzonkala, alleged that she was raped by two peers, Antonio Morrison and James Crawford. Brzonkala filed a lawsuit against Morrison and Crawford asserting that this attack violated 42 U.S.C. section 13981 of the Violence Against Women Act of 1994 (VAWA), a law which provided “a federal civil remedy for the victims of gender-motivated violence.” Morrison and Crawford sought to have the case dismissed arguing that section 13981's civil remedy was unconstitutional. Congress, they asserted, is not granted the authority under the Commerce Clause to regulate violence against women. In defense of its regulation, the United States argued that gender-motivated violence is a crime that substantially affects interstate commerce.
To demonstrate its affect on commerce, the federal government presented the Court with substantial findings that highlighted the impact of gender-motivated violence on economic activities. In the opinion of the Court, Chief Justice Rehnquist writes:
…§13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, “[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so."
Considering this narrowed understanding of Commerce Clause jurisprudence may give us some insight into how today's Court will view the federal mandate on health insurance. Although some have argued that the fact that health care spending accounted for $2.2 trillion in 2007 alone is enough of a “rational basis” for Congress to mandate health insurance, Rehnquist's words show that it is not. Simply because Congress may conclude that every living American must possess health insurance does not necessarily make it so.
In Morrison, Rehnquist goes on to write:
Thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.
Does the Court's finding that gender-motivated violence is not an “economic activity” indicate that it will also view an individual's decision to remain outside of the health insurance market as not an "economic activity"? Does it indicate that the Court will strike down the individual mandate as unconstitutional? Some have argued that, after reviewing the federal mandate the Court will rule—as it did in the Morrison case—that although there is a problem that needs to be addressed, the federal government does not possess the authority to address it:
[N]o civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States.
But others believe that the Court's ruling in the Morrison will have little to no impact on its view of the mandated purchase of insurance. So the question remains: Will the Supreme Court uphold the Democrats' individual mandate on health insurance or strike it down as unconstitutional? In our next and final installment of this 8 part series, we will conclude our discussion by attempting to answer that very question.