Why hasn't the Commerce Clause been read to allow interstate insurance sales?
ANDREW P. NAPOLITANO
Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?" Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Constitution.
One of those powers—the power "to regulate" interstate commerce—is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.
Unfortunately, a notoriously tendentious New Deal-era Supreme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942), the Supreme Court held that a farmer who grew wheat just for the consumption of his own family violated federal agricultural guidelines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines—indeed, it never left his farm—the Court held that if other similarly situated farmers were permitted to do the same it, might have an aggregate effect on interstate commerce.
James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."
The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.
Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.
The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.
That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.
What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution—they are evading it.
Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "Dred Scott's Revenge: A Legal History of Race and Freedom in America" (Nelson, 2009).
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High Cost Of Care
By INVESTOR'S BUSINESS DAILY | Posted Tuesday, September 15, 2009 4:20 PM PT
Medicare: As Democrats try to remake the health care system in the face of bitter opposition, the federal public option for the elderly is preparing to cut benefits. This should be part of the debate, but of course it's not.
Supporters of the health care revision tell us that its $1 trillion price tag won't add a dime to the national deficits. But the reality is, any program that expands Washington's reach into health care will cost far more than the rosy projections we're hearing. History shows that the bureaucracy always spends far more on programs than the Beltway experts say it will.
One program that has spun wildly out of control is Medicare, enshrined as an entitlement in 1965. Actuaries projected its cost for 1990 at $10 billion. Yet actual outlays were $107 billion. Now the program is spending more than it is taking in through the payroll tax that funds it, leaving Washington with only two options: ration Medicare or raise taxes.
Don't make the mistake of thinking that brilliant minds in Washington will figure out a way to avoid rationing before it becomes necessary. Those heads are busy looking for places to slash now. Medicare, for instance, is considering cutting $1.4 billion in benefits beginning on Jan. 1, 2010. If the new schedule is adopted, the reductions will be in fees paid to cardiologists and oncologists.
At the same time that fees for heart and cancer physicians will be trimmed by 10%, fees paid to family doctors will be boosted by 8% and reimbursements paid to nurses will rise 7%. The administration believes that moving the fees toward primary care will be a boost for preventive care.
There are two points to take away from this mostly ignored news.
One, any scheme passed by this Congress and signed into law will cost taxpayers dearly. Two, the government will have to ration care because it cannot possibly pay for a nation of 305 million demanding its "free" medical care.
If the rationing is adopted, it will have a direct effect on patients, particularly those who are suffering from two of the most serious illnesses. Heart and cancer specialists, who will be expected to accept Medicare reimbursements that are less than some procedures cost, are already reporting that they will either close their practices or limit care. Some will simply stop treating Medicare patients.
Anyone who believes Washington can improve health care by increasing its involvement is not thinking clearly. Its solutions tend to create bigger problems. Yes, a government takeover may improve care for a small segment of the population. But it will be far worse for everyone else.
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