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The Constitutionality of Obama's mandate: "To Regulate" and "Among the Several States" (5 of 8)

In our previous 4 installments of this 8 part series, we defined the term "individual mandate on health insurance" (Blog 1), revealed the need to adhere to a strict textual reading of the Constitution (Blog 2), saw that the federal government will use the "Commerce Clause" in defense of its individual mandate (Blog 3) and found that the first Americans understood the word "commerce" to mean "trade" (Blog 4).  Now we must continue our examination of the Commerce Clause.  In order know how much power it grants to Congress, we must first see how the founders and the early American public understood the phrases "to regulate" and "among the several states."

Section 5: To Regulate

Today it is widely accepted that in the context of the Commerce Clause the term “to regulate” grants Congress the ability to both control and prohibit commercial activities.  A federal ban on the trafficking and use of certain narcotics, for example, falls under Commerce Clause authorities.  But was the constitutionally-granted power of regulation originally intended to include the ability to prohibit?  Was it intended to include the power to mandate?

Samuel Johnson’s 1785 edition of Dictionary of the English Language defines “to regulate” as:

1. To adjust by rule or method… 2. To direct.

When applied to the Commerce Clause, this narrow meaning can be understood as “to make regular.”  In his book Restoring the Lost Constitution, Randy Barnett writes:

The power to regulate is, in essence, the power to say, ‘if you want to do something, here is how you must do it.'

On the other hand, Johnson's dictionary defines “to prohibit” as:

1. To forbid; to interdict by authority… 2. To debar; to hinder.

And, the Dictionary of the English Language equates the term “mandate” with the words “command; order; precept” and “commandment.”  Clearly Samuel Johnson and, more importantly, the large populist who relied upon his definitions did not consider “to prohibit” and “to mandate” to fall within the realm of regulation.

But—when reading the Constitution—how are we supposed to understand “to regulate?”  Are we to follow such a narrow definition?  And if not, should we believe that the power to regulate is broad enough to encompass the ability to mandate the purchase of a product?  To answer these questions we must understand what the founding fathers meant when they afforded Congress the power “to regulate” commerce.

As was the case with the word “commerce,” when attempting to grasp the meaning that the term “to regulate” holds in the Constitution, we must first examine the text itself.  Including the Commerce Clause, the words “regulate” and “regulation” can be found eleven times in the Constitution and subsequent amendments.  The first time that it appears is Article I, Section 4 which grants Congress the power to “make or alter such Regulations” as to “The Times, Places and Manner of holding Elections for Senators and Representatives.”  As Barnett astutely recognizes:

Clearly, the power to regulate or facilitate elections is not the power to prohibit them.

Nor is it the power to mandate that every citizen participate in such elections.  It is merely the power to “make regular” the procedure by which elections will be held.

“To regulate” later appears in Article I, Section 8 which grants Congress the authority, “To coin Money, regulate the Value thereof, and of foreign Coin.”  It does not afford the power to “prohibit the use of money” and it does not afford the power to mandate the possession of money.  And Article III, Section 2 specifically differentiates between “exceptions” and “regulations” when it grants the Supreme Court appellate jurisdiction “both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  As Barnett points out:

[By posing such a distinction] the Constitution distinguished Congress’s power to regulate or subject to rule the Court’s appellate jurisdiction and its power to prohibit the Court from exercising its jurisdiction by making “exceptions” thereto.

But nowhere does the Constitution makes the founders’ intended meaning of “to regulate” more clear than in the Second Amendment which states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

And in Federalist 29, Hamilton writes:

The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy. It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects…

In this case, "to regulate” can be understood as “to make regular” and “to make regular” can be understood as “to make uniform.”  Hamilton clearly equates the ability “to regulate” a militia with the ability “to make uniform” a militia in “organization and discipline.”  A well regulated militia is a militia that is well trained and well organized.  It is not a militia that is prohibited.  A prohibited militia cannot watch over the “internal peace of the Confederacy” because it is nonexistent.  Furthermore, the founders did not believe that a well regulated militia was a mandated militia.  They foresaw a volunteer militia made up of the citizenry.  If said militia was mandated, then there would be no need to make mention of the right to “keep and bear Arms.”  The government would provide arms for the militia.

But, according to Barnett:

...even a narrow power ‘to regulate’ commerce among the states, properly construed, would include a limited power to prohibit some activities related to trade.

He goes on to explain that the narrow power to regulate rightful commercial activities includes within it the power to ban wrongful acts—such as fraud—that harm the rights of those partaking in commerce between the states.  For example, Article I Section 9 of the Constitution prevents Congress from prohibiting the importation of persons prior to the year 1808.  This illustrates the founders’ view that it is within the powers vested in Congress to prohibit the trading of slaves and thus, it was specifically denoted that prior to 1808 such powers were to be restrained.

The term “to regulate” means “to make regular.”  To regulate something is to set up the rules by which it must abide.  In the context of the Constitution, it also includes the power to prohibit wrongful activities that impose upon the ability of others to trade freely.  Barnett sums “to regulate” up as:

[The power] to facilitate the free flow of goods, but not, except in cases of danger, to prohibit the flow of any good.

There is, however, no clear instance that illustrates that the founders intended “to regulate” to include the ability to mandate that individuals behave in a certain manner; there is no instance in which they indicated that the power to regulate and the power to force purchases upon citizens are one in the same.

Section 6: Among the Several States

In an attempt to legitimize the federal government’s power to enforce certain legislation, some have argued that the phrase “among the several States” includes both interstate activities and intrastate activities that “concern” other states (See Gibbons v. Ogden).  And others have gone even further (See Wickard v. Filburn):

[E]ven if [an] activity be local… it may still… be reached by Congress if it exerts a substantial economic effect on interstate commerce.

This broad understanding of the regulation of commerce “among the several States” includes commerce between two or more states, commerce that “concerns” more than one state, and commerce between people of the same state that “concerns” more than one state.  But what did the framers of the Constitution originally mean by “among the several States?”

When considering the meaning of “among the several States” one need look no further than the Commerce Clause itself.  In full, the Clause grants Congress:

[...the power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

The fact that the founders specifically denoted the three types of commerce that Congress has the authority to regulate indicates that there are types of commerce that exist outside of the Congress’s jurisdiction.  Otherwise, the Commerce Clause would cover all domestic commerce and all foreign commerce.  In such an instance, the Clause would be more accurately written to grant Congress the power “To regulate all Commerce.”  According to Barnett:

The only reason for listing three commerce powers of Congress is to exclude some type of commerce from the power of Congress, and the only commerce that is excluded is commerce that occurs within a single state.

Authority over such commerce was intentionally eliminated from those granted to Congress.  It was intended to be one of the “numerous and indefinite” powers delegated to the states.

In Federalist 23, Hamilton makes clear his view of the phrase “among the several States” when he writes:

The principal purposes to be answered by union are these -- the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

The principal purposes to be answered by union did not include the regulation of commerce that occurs strictly in one state or even of commerce that occurs strictly in one state but that also greatly affects interstate commerce.  They did, however, include the regulation of commerce “between the States”--commerce that occurs between people living in one state and people living in another.

Furthermore, the fact that the Southern states—the same states that fought during the ratification debates to ensure that the importation of slaves would be left unregulated until after 1808—ratified the Constitution with “among the several States” in the Commerce Clause refutes the idea that the phrase can include commerce within a single state.  Barnett writes:

It can be asserted with certainty that the Southern states would never have ratified the Constitution if the power to regulate commerce among the states included the power to regulate slave trade within a particular state, which was unquestionably and reprehensibly thought to be a form of commerce… As the Framers surely understood, these other branches of trade substantially affect interstate commerce.

It is safe to say that Southerners understood “among the several States” as meaning between the people of different states.  Anything broader would have threatened their way of life.  They would not have ratified a Constitution that included such a provision.

The regulation of commerce “among the several States” means the regulation of commerce “between the several States.”  It does not include commerce among people of the same state or trade that occurs strictly within one state.  If it did, then Congress would have limitless power to regulate commerce.  There would be no need to specify between the types commerce that Congress can legitimately regulate.

Section 7: Using a Strict Textual Reading of the Commerce Clause, Can Congress Mandate Insurance?

As Justice Thomas points out in his concurrence of United States v. Lopez (1995), if the Commerce Clause grants Congress the power to regulate all matters that greatly affect interstate commerce, then:

...there is no need for the Constitution to specify that Congress may enact bankruptcy laws, or coin money and fix the standard of weights and measures, or punish counterfeiters of United States coin and securities.  Likewise, Congress would not need the separate authority to establish post-offices and post-roads, or to grant patents and copyrights, or to "punish Piracies and Felonies committed on the high Seas."

When the founders granted Congress the power to “regulate commerce… among the several States,” they afforded it the authority to make regular the process by which trade between the people of two or more separate states occurs.  They also bestowed Congress with the power to prohibit, in certain cases, activities that infringe upon the rights or ability of others to freely trade.  A mandate on the purchase of health insurance does not fall within either of these constitutionally allotted powers.

The legitimate use of the Commerce Clause results in regulations that are best explained in the form of an “if, then” relationship.  If an individual chooses to take part in interstate commerce, then he must follow certain guidelines.  For the federal government to remain within the confines of its constitutionally allotted power, its actions must remain in a close relationship with individual action.  If an individual chooses to sell meat, then he must first get that meat approved by the United States Department of Agriculture (USDA); if an individual chooses to sell tobacco products, then those products must carry the Surgeon General’s warning; if an individual chooses to sell bicycle helmets, then such helmets must meet U.S. Consumer Product Safety Commission (CPSC) standards.  But another essential aspect of the Commerce Clause is what it protects.  The Commerce Clause ensures that the actions of individuals can exist outside of a relationship with government.  An individual eats hamburgers not because the government forces him to but because he is hungry.  As long as the government remains within the limitations set up by the Commerce Clause, individuals will be free to continue to do so.

A federal mandate on health insurance dramatically alters the relationship between government action and individual action.  Under such a mandate, the “if, then” relationship will become a “because” relationship where an individual buys health insurance because the government tells him he must.  Such a mandate forces every American to purchase a product—at times against their will—simply because they are alive.  No action necessary.  The purchase of health insurance will not be required to make regular the trade of goods between states.  It will be required of nearly every individual in existence.  Merely existing is not an economic activity.  It does not constitute as trade between people of two or more separate states.  Thus, when following a strict textual reading of the Constitution, the mandated purchase of health insurance is unconstitutional.

Now, although we have shown that a strict textual reading of the Constitution is necessary to protect both the rights of the people and the legitimate authority of the government, historically, the Supreme Court has not relied upon such a close reading of the document.  Over time, the Commerce Clause has been stretched and distorted to accommodate legislation that would have otherwise been struck down.  And even though we have illustrated that a federal mandate on health insurance is unconstitutional according to the text of the Constitution, we must still examine whether or not the Supreme Court will draw the same conclusion when the legislation reaches its desk.  In our next installment of this series of 8 blogs, we will have to examine the case law that has lead to such an expansive view of the Commerce Clause.