commerce clause

Home » commerce clause

Obama fires back

I found this very interesting. President Obama has turned up the heat on the Supreme Court.


From HuffPo:

President Barack Obama offered his first public comments on the Supreme Court’s hearing of his signature health care law, telling reporters that he believed the court will rule that it is constitutional.


By |2012-04-04T20:24:38-04:00April 2nd, 2012|Healthcare, Supreme court|9 Comments

Do conservatives understand the Constitution they say they love?

Healthcare commerceGood Morning C&L Readers. Thanks for stopping by.

Several states banded together and filed a lawsuit stating that healthcare reform was unconstitutional. They seem to be using a two-pronged argument: First, healthcare reform “infringes on state powers under the Constitution’s Bill of Rights.” Secondly, according to the Attorney General of Virginia, “Congress lacks the authority under its constitutional power to regulate interstate commerce and force people to buy insurance.” We’ve heard cries of, “where does it say in the Constitution that Congress has the power to force you to buy insurance?”

Well, let’s start from a position that I think we all can agree on — the Supreme Court is the final arbiter over what the Constitution says and doesn’t say. Whether we agree or disagree with the Supreme Court, they have the final say (Article 3, Section 2).

Let’s start off this legal journey to looking at Article I, Section 8 — “The Congress shall have the power… to regulate commerce with foreign Nations, and among the several States, and with Indian Tribes;” “Commerce” is defined in Merriam Webster’s Dictionary as “social intercourse: exchange of ideas, opinions or sentiment.” The secondary definition is the one that we are more familiar with — “…the exchange or buying and selling of commodities on a large scale involving transportation from place to place.”

We really weren’t a nation for long before this commerce clause was challenged. In 1816, Congress passed a law which opened the second Bank of the United States. Shortly after the bank opened, the state of Maryland passed a law which imposed taxes on that bank. James McCulloch was the cashier of the Baltimore branch. He refused to pay the tax. McCulloch versus Maryland was the resulting case. The Supreme Court, using the commerce clause, stated that Congress had the right and the power to incorporate a bank. Chief Justice John Marshall, who fought in the Revolutionary war, served in Virginia’s House of Delegates and was appointed to the court by President John Adams, argued that Congress possessed unenumerated powers not explicitly outlined in the Constitution. (Where was Antonin Scalia?) He went on to say, “Although, among the enumerated powers of Government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government. It can never be pretended that these vast powers draw after them others of inferior importance merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended that a Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution.” Therefore, in this early decision made almost 200 years ago, we see that Chief Justice John Marshall unequivocally rejects the notion that if the Constitution does not say X., Y. or Z. and Congress can’t do it. This in an of itself blows 99% of conservative arguments out of the water.

In 1824, steamboats were probably the fastest mode of transportation. Each state regulated its own waterway. A steamboat owner who operated in New Jersey and wanted to operate in New York challenged a New York law which gave exclusive rights to another company. Gibbons versus Ogden. Not only did the court find in favor of Congress that Chief Justice John Marshall also defined commerce. He stated, “The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.”

To be fair, I should add that the courts tried to limit Congress’ power through the commerce clause in the late 1890s through the 1930s. In 1918 Congress tried to prohibit child labor. In the Hammer versus Dagenhart case, Justice William Day argued, in a 5 to 4 decision, that production was not commerce and therefore outside of the jurisdiction of Congress. So this limited Congress’s power through the commerce clause. Personally, I believe this is a nonsensical argument, since without commerce there’s no reason for production, and production as part of the process. It is part of commerce. The Supreme Court was splitting hairs here. Oliver Wendell Holmes’ dissent was brilliant. He states, “The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate.” This is a GREAT explanation of how the relationship between the States and the Federal Government should interact.

In the United States versus Darby Lumber Company, the Supreme Court overturned the Hammer decision. The Fair Labor Standards Act was passed as part of the New Deal. It regulated minimum wages and maximum weekly hours. It also dealt with child labor. This applied to all corporations that engage in interstate commerce. This unanimous decision came down in 1941. One of the most interesting things in the decision was that Supreme Court dealt with a common argument that conservatives have thrown out for years; states’ rights. The court ruled that, “the 10th amendment is not a limitation upon the authority of the National Government…”

In 1944, the Supreme Court ruled that Congress had the power to regulate insurance.

So, I think it’s pretty clear from the very beginnings of our republic that the Supreme Court’s interpretation of the commerce clause has been very expansive. For more on the commerce clause, I’ve written more here and here. Simon Lazarus of the American Constitutional Society for Law and Policy has written a nice 16-page brief on whether mandatory health insurance is constitutional.

Why don’t conservatives know this? I did a couple of hours of research and found information that is readily available on the Internet or in your local public library. My guess is many conservatives do know this information. Yet, they choose to ignore it while they stoke the anger and frustration of many Americans. The filing of a lawsuit and the multiple op-eds that have been generated seem to be part of a calculated political ploy. This is about politics. Maybe maybe that is what’s so sad about all of this.

By |2010-03-31T17:28:49-04:00March 31st, 2010|Healthcare, Legal, Party Politics|Comments Off on Do conservatives understand the Constitution they say they love?

Grab Bag Sunday

I hope you had a nice weekend. Mine was pretty fair.

  • I have been discussing the commerce clause with a friend of mine. He is a conservative and he doesn’t like health care reform. In spite of this, we’re trying to have a civil discussion over the constitutionality of healthcare reform, which I covered a couple weeks ago. One of the arguments for the constitutionality of health care reform is Congress’s authority under the commerce clause in the Constitution. The commerce clause can be found in article I, section 8. I found a nice explanation of the commerce clause here. I have also been reviewing Linda Monk’s book, The Words We Live By. It points to a couple of key cases that I’m going to be looking up in the next day or so (United States versus Darby Lumber Company, Heart of Atlanta Motel versus the United States).
  • I congratulate President Obama for going to Afghanistan. I think it is truly important that we get Afghanistan right. One of the key questions is — is it too late? Only time will tell. One thing is certain. We have to get the corruption under control.
  • Several days ago, I got my U.S. Census letter in the mail. As I was filling it out, I kept thinking to myself, what’s the big deal? Conservatives like Michele Bachmann have been railing against the census as if the questions were going to be the most invasive ever thought of (what is your bra size? How often do you watch pornography on the Internet?) She even went so far as to suggest that people should not fill out the census — violating US law. The questions were simple. The information is critically important to all of us.
  • Lost in the healthcare debate is the reform of student loans that was also in the legislation. Government loans used to go through different financial agencies so that they can extract management fees. Now the government will lend directly to students. This should significantly decrease interest rates and other fees. This is a good thing.
  • Sarah Palin has come up with a new attack line against President Barack Obama. I guess she thinks that this is a winner. She told a crowd at the “Conservative Woodstock” in Searchlight, Nevada that, “we need a commander-in-chief, not a constitutional law professor lecturing us from a lectern.” Now that’s a comeback… not!! She spent a good deal of her time talking about how important the Constitution is and then turned around to claim that we don’t need a constitutional law professor. Does that make any sense? Does she make any sense?
  • Frank Rich from the New York Times had an absolutely fabulous column today. He put the over-the-top rhetoric and violence into perspective. We have to go back to the civil rights era and the ratification of the Civil Rights Act before we can say that we’ve seen anything like this in American politics. Here’s a small excerpt from his column. (Please read all the column. It is wonderful.):

But there was nothing like this. To find a prototype for the overheated reaction to the health care bill, you have to look a year before Medicare, to the Civil Rights Act of 1964. Both laws passed by similar majorities in Congress; the Civil Rights Act received even more votes in the Senate (73) than Medicare (70). But it was only the civil rights bill that made some Americans run off the rails. That’s because it was the one that signaled an inexorable and immutable change in the very identity of America, not just its governance.

The apocalyptic predictions then, like those about health care now, were all framed in constitutional pieties, of course. Barry Goldwater, running for president in ’64, drew on the counsel of two young legal allies, William Rehnquist and Robert Bork, to characterize the bill as a “threat to the very essence of our basic system” and a “usurpation” of states’ rights that “would force you to admit drunks, a known murderer or an insane person into your place of business.” Richard Russell, the segregationist Democratic senator from Georgia, said the bill “would destroy the free enterprise system.” David Lawrence, a widely syndicated conservative columnist, bemoaned the establishment of “a federal dictatorship.” Meanwhile, three civil rights workers were murdered in Philadelphia, Miss.

That a tsunami of anger is gathering today is illogical, given that what the right calls “Obamacare” is less provocative than either the Civil Rights Act of 1964 or Medicare, an epic entitlement that actually did precipitate a government takeover of a sizable chunk of American health care. But the explanation is plain: the health care bill is not the main source of this anger and never has been. It’s merely a handy excuse. The real source of the over-the-top rage of 2010 is the same kind of national existential reordering that roiled America in 1964.

In fact, the current surge of anger — and the accompanying rise in right-wing extremism — predates the entire health care debate. The first signs were the shrieks of “traitor” and “off with his head” at Palin rallies as Obama’s election became more likely in October 2008. Those passions have spiraled ever since — from Gov. Rick Perry’s kowtowing to secessionists at a Tea Party rally in Texas to the gratuitous brandishing of assault weaponsat Obama health care rallies last summer to “You lie!” piercing the president’s address to Congress last fall like an ominous shot.

  • And then there was one… or four. Kansas, Kentucky, Syracuse and Duke were all ranked the number one seeds in their sections. Only Duke has made it to the final four. The other three teams include Michigan State, West Virginia and possibly the greatest Cinderella story of them all, Butler. March madness brings some absolutely fabulous basketball and some of the most horrendous basketball faux pas. By the way, I picked Duke to win it all.

I’ll end with a little smooth jazz from Jeff Lorber, who has playing this type of music for over 25 years.

Artist: Jeff Lorber
Tune: Rain Song

By |2010-03-29T00:02:04-04:00March 29th, 2010|Afghanistan, Domestic Issues, Healthcare, Legal, Music|Comments Off on Grab Bag Sunday
Go to Top