In Obamacare ruling, can limits be put on Commerce Clause?

Since “Obamacare” – the Patient Protection and Affordable Care Act – and its mandated insurance have been thrust upon us, three U.S. Appeals Court cases have ruled on its constitutionality. Two have sustained it, one has found against it. The case is now before the Supreme Court.


Even though the Constitution does not explicitly provide for congressional authority to enact such a far-reaching, comprehensive statute, the issue before the court is whether an “implied power” – namely, a further stretching of the interstate Commerce Clause – can be justified to extend further federal power.


AUTHORITIES DECLARE that one main function of the court is to interpret the Constitution (read: broaden and expand the powers of federal authorities). For this nation’s first two centuries, the court took a restricted, more or less narrow view of identifying implied powers; it usually exercised caution in finding them and in extending their scope.

After President Franklin Roosevelt’s failed attempt to “pack the court” in 1937 (to expand its membership to 15), the Supreme Court has found more and more implied powers, and more and more extensions of existing powers. With partisan governments in control, no longer must people enact a constitutional amendment to explicitly grant a power to Congress; Congress enacts the law it wishes and a sympathetic court often can find the implied power to justify it.

Members of law school faculties, along with White House lawyers, are currently straining their imaginations to justify expanding the scope of the Commerce Clause to cover the insurance mandates. If successful, it can help provide a springboard for even further extensions of federal powers. This process has become an unstoppable express punctuated, now and then, with irregular detours.

The more fundamental question, however, is whether Congress, under Obamacare, has the constitutional authority to mandate the purchase of health insurance. Since the Constitution does not explicitly provide such powers, what can be their source? No constitutional amendment has granted them.

Progressives have long looked for “implied powers” in the Constitution to find federal powers beyond those perceived by our Founders. Some law-school professors have had a ball searching the Constitution for clauses sufficiently vague to permit sweeping, if not unbounded, extensions of federal power.


AFTER FDR’S failed attempt to pack the court, this possibility was enormously enhanced when the clause that regulates interstate commerce was rediscovered and began to be milked with fervor for more powers; indeed, a clause that has since served as an “Aladdin’s Lamp” for federal-power extension advocates. The clause is contained in Article I, Section 8, which provides that Congress shall have power “to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes.”

However, many authorities believe that the purpose of the clause was to enable Congress to control the imposition by states of tariffs, quotas and other barriers to interstate trade, not as a weapon to forge federal regulatory powers into every nook and cranny of citizens’ lives. While the media tend to treat all Supreme Court decrees as landmarks, the one first referencing the Commerce Clause must be hailed as the “landmark” of all landmarks.

Ironically, our Founders regarded state governments and individuals as the ultimate source of power that was to be relinquished to form the new federal government. That is to say, power went from people, and the states, to the United States.

This notion is highlighted by the Founders’ sensitivity to honoring both state and individual rights. In fact, the 10th Amendment enshrines this relationship between the federal government and the states, and the people, by declaring: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The court has implicitly interpreted this statement to mean that the “powers not delegated” may be invaded by “implied powers,” by stretching the delegated powers through interpretation to encompass other powers not explicitly provided for by the constitution. Federal jurists relentlessly close in on the diminishing powers of states and the people.

Currently, this relationship, which is so clearly stated in the 10th Amendment, has been turned upside-down by the court. It has annulled the amendment. And the primary vehicle for this somersault has been the constitutionally provided interstate Commerce Clause. With an able assist from the Preamble’s welfare proviso, this clause provides unbounded opportunity for jurists to find implied powers for virtually any purpose.


UNFORTUNATELY, it is infinitely easier to discern such new powers than to enact a constitutional amendment denying them to federal authorities.

Since an amendment is currently not politically viable, it is difficult to see how the growing implied-power express can be halted. While a permanent derailment may be beyond current expectations, we can hope that when the current Supreme Court looks at Obamacare, it at least puts some limits on this dangerous clause.


(The writer is a professor emeritus of financial economics at the University of Georgia. He lives in Aiken, S.C.)