The Cost of Doing Nothing

How ObamaCare revived the debate over the use and abuse of the Commerce Clause

Damon W. Root

James Madison once described the judiciary as “an impenetrable bulwark against every assumption of power in the legislative or executive." Had he lived to see the Supreme Court’s sweeping definition of congressional power under the Commerce Clause, he might have revised that statement.

Under Article I, Section 8 of the Constitution, Congress possesses the power “to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes.” In the 1942 case Wickard v. Filburn, the Court held that the Commerce Clause allowed Congress to forbid farmer Roscoe Filburn from growing twice the amount of wheat permitted by the Agricultural Adjustment Act and then consuming that extra wheat on his own farm. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California still counted as commerce “among the several States” and was thus open to the depredations of the Controlled Substances Act. As Justice Clarence Thomas observed in his Raich dissent, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

If the Democrats in Congress succeed in passing any of the health care bills currently under debate, Justice Thomas may get another chance to set his colleagues straight. Every leading bill features a so-called personal responsibility provision, also known as the “individual mandate,” which would require all Americans to either purchase or secure health insurance. And as the Senate version bravely asserts, this requirement is perfectly constitutional thanks to the Commerce Clause: “The individual responsibility requirement...is commercial and economic in nature, and substantially affects interstate commerce.”

Is that true? Not according to Georgetown University law professor Randy Barnett, the author of a leading law review article on the original meaning of the Commerce Clause and one of the lead attorneys involved in the Raich case. In a recent paper entitled “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional,” Barnett and co-authors Nathaniel Stewart and Todd Gaziano make the strongest and most compelling case yet that the individual mandate is “unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.” READ MORE REASON