Well, Burt, here, might appear to be shocked (though he was a VERY good actor), but no one who has any knowledge of the Constitution or the history of American government since 1865 is, or rather, should be.
That’s because the Washington DC circuit court of appeals did what everyone who was paying attention to the case against Obamacare in that court expected them to do. The justices twisted the “commerce clause” of Article I,§8, which allows Congress “To regulate Commerce…among the several States…,” into a blank check for federal power of whatever nature. Here are the facts as they exist at the moment; this is an article from National Review, the first place we were able to find information on this decision. There is a link to the decision in the article and here.
Hopefully, if you are a discerning reader, you are beginning to ask yourself some probing questions about this decision. For instance, you might be asking yourself how an arm’s length transaction between you and your doctors can be in any way construed as “interstate commerce.” The answer to that question is that under any sort of normal common-sense reasoning (the reasoning the Constitution was designed around) it can’t. But in the rarified atmosphere of the federal courts, from whose rich soil sprung the twisted logic of Wickard v. Filburn, a horrible 1942 Supreme court decision wherein a farmer who grew more than his federally mandated quota of wheat on his own land for his own animals was fined for said “crime” based on the federal government’s “interstate commerce” regulation power of the Constitution, any power the federal government desires is their’s by the simple act of passing a law or, in the case of ALL of the presidents of the 19th century, writing an executive order.
The rational behind the Wickard decision is a masterpiece of pretzel logic. If the farmer had not grown the wheat he would have had to buy feed for his animals at a local supplier who might have had to get it from an out of state supplier. But on the other hand, since he grew the wheat himself then quite possibly the local supplier didn’t buy feed from out of state because the farmer didn’t need it. Therefore, no matter what the farmer did, interstate commerce was, according to the “reasoning” of the justices, “effected” and it follows that the “commerce clause” can be enforced.
This type of reasoning was anticipated by opponents to the ratification of the Constitution known as the Anti-federalists. These thinkers were uncanny in their prescience about what was to come from constitutional interpretation. One should read especially the writings of Brutus especially his essays numbered XI-XVI on the federal judicial powers wherein he states and then expands on his argument that –
…the judicial power of the United States, will lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction…1
If what Brutus says is true we should be able to see it in decisions like Wickard. And our efforts are soon rewarded. Associate Justice Robert Jackson stated
A frank holding the the interstate commerce power has no limits except those which Congress sees fit to observe might serve a wholesome purpose2
Thus, Brutus is proven correct if somewhat understated. But what might the limits of the interstate commerce clause entail? Let’s remember that the power is delegated to the federal government in what are known as the “enumerated powers,” a specific list of powers that Congress has as long as the federal government operates under the Constitution. But how can we prove that they are supposed to be limited powers, as opposed to the unlimited authority presupposed by the justices in Wickard v. Filburn? Our clues come in a couple of spots. First the 10th Amendment tells us that
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.
Now we must look at the clear language of Article I,§8
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…
Some historical background that we have no space to detail here has to do with the purpose of the interstate commerce clause. In short, the reason we have the Constitution is that there was no interstate commerce clause in the Articles of Confederation. Some states had international ports while others did not. The states that had them often abused that fact to collect exorbitant customs duties at state borders. This created hostility among the states and threatened the Confederation with dissolution if it were not fixed and fixed quickly. Several attempts were made to fix this problem with some states reluctant to surrender the economic and political power this advantage gave them. Hence, the Constitutional Convention. and hence the interstate commerce regulatory power which is specific and limited in scope.
So what purpose was there for this limited power to regulate interstate commerce? To make certain the states maintained open trade between them and the outside world and to maintain peace between the states. It had NOTHING to do with stopping farmers from growing as much wheat as they desired for their own use or assuming control of the health insurance and health care provision industries. In fact, the wording of the 10th Amendment makes it clear that unless powers are specifically delegated by the people or the states to the federal government, it has no authority to even consider legislation in these areas.
One of the arguments that is presupposed is related to the so-called supremacy clause of Article VI. Many presuppose and the courts have stated specifically in Obamacare appeals decisions that because of the supremacy clause, any law passed by Congress or any executive order or court decision is automatically allowed. Here is Article VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.[emphasis added]
A quick reading might give someone the idea that this notion is correct. But a more careful reading shows where the logical flaw is in that line of reasoning. Note that the language in the first clause makes it clear that all laws and treaties must be made in pursuance (that is in accordance with) the Constitution. Since the Constitution includes the Bill of Rights which contains the 9th and 10th Amendments and other restrictions of federal authority, as well as specifically enumerated powers which the 10th Amendment makes clear are limited. The only way the “supremacy clause” could possibly mean that anything the federal government does is legal is if there are no limits to the delegated powers or the delegated powers have no meaning beyond being a pointless “for instance” list. This was clearly NOT the intent of the framers of the Constitution (beyond a few notable exceptions).
So, coming back to the main point, the DC Circuit Court of Appeals has done exactly what Brutus predicted they would 222 years ago. That is they have assumed that they are the ultimate (really, the penultimate) authority on the extent of federal powers and have ruled in favor of- surprise, surprise- unlimited federal power. Exactly as Brutus and other Anti-federalists predicted.
But of course, the federal government is not the final authority on the extent of its own powers. The people and the states are (otherwise, the 10th Amendment is meaningless). Hence, states like Ohio which just voted to exempt itself from Obamacare. Now comes the test of the mettle and the resolve of our representatives to implement the clear will of the people.
One last problem that almost no one is mentioning is that neither the federal courts of appeal, nor the federal circuit courts have any jurisdiction to hear cases of the states suing the federal government. How do we know? By reading the Constitution. Article III, §2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; …— to Controversies to which the United States shall be a Party;… In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction… [emphasis added]
In other words the Supreme court cannot do what it has done in these cases, that is force the states to go through the district and circuit courts first. The Supreme court is required by law to hear any case in which one of the states is a party.
The Obamacare suits have been a debacle from the outset, but they’re not the only example of the Supreme courts not obeying the Constitution and state legal officials not understanding it and forcing its proper implementation.
Want to know more about the Constitution than your state’s Attorney General? Take our Institute On The Constitution class.
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End Notes
1 Brutus XI, Online version of the Anti-federalist, http://www.constitution.org/afp/brutus11.htm
2 Woods, Thomas E., Jr. and Kevin R.C. Gutzman, Who Killed The Constitution?, Pp. 138-39, 2008, Crown Forum, an imprint of Crown Publishing Group, a division of Random House, Inc., New York, NY