Krauthammer and the Court

Krauthammer and the Court

P. Schultz

July 1, 2012

This is a quote from a Charles Krauthammer column that appeared in the Winston Salem Journal and, I am sure, in other papers as well. My comments follow.

“As a conservative, he [Chief Justice Roberts] is as appalled as his conservative colleagues by the administration's central argument that Obamacare's individual mandate is a proper exercise of its authority to regulate commerce.

“That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?”

Nice try, Krauthammer. Let me give you another scenario: Mr. Farmer plants some corn on his farm. He does not intend to and does not sell it to anyone. Rather, he uses it to feed his cattle only. He is then charged with violating a federal law that says he could only grow so much corn on his farm and this law was based on the Congress’ power to “regulate” commerce. He appeals all the way to the Supreme Court and, guess what, he loses. And he lost because Congress, in having the power to regulate commerce, has the power to regulate anything that affects that commerce. Did Mr. Farmer engage in commerce or in interstate commerce? The Court’s answer was “No” and that answer is correct. Mr. Farmer like Mr. Jones in Krauthammer’s example “manifestly [has] not entered into any commerce.” But it did not matter because what Mr. Farmer had done affected interstate commerce or “commerce among the several states.”

Does this mean that the power of Congress is virtually unlimited under the commerce clause? Yes, it does, for all practical purposes, as Chief Justice Marshall pointed out in the case of Gibbons v. Ogden. Of course, the Court has rendered decisions, especially more recently in such a case as Lopez v. United States [1995], that do attempt to establish limits on the Congress' power to regulate commerce. But at the same time and even the same Court has rendered other decisions that for all practical purposes render the Congress' power to regulate commerce limitless. The scenario above was based on a case, Wickard v. Filburn, which held that a farmer who grew more wheat than he was allotted under federal regulations, even though this wheat had only a minuscule affect on interstate commerce, could be held liable for violating a constitutionally valid regulation of commerce among the several states. And in Katzenbach v. McClung, Ollie's Barbecue was liable for violating the 1964 Civil Rights Act even though less than half its business was interstate and its affect on interstate commerce was minuscule. And more recently, the Court held that the federal government could regulate, i.e., criminalize, the sale and distribution of marijuana, even in states allowing the medicinal use of marijuana, as a valid regulation of interstate commerce.

What is the remedy? How is this great power to be limited? We could rely on the Supreme Court but as the above summary indicates, this does not guarantee that the commerce power will be limited in its application. For Chief Justice Marshall the remedy lies with the people and their elected representatives. If the Congress deems that not buying health insurance will have an adverse affect on commerce among the several states, then the Congress can regulate this non-activity, either with its commerce power or its taxing power, just as it may mandate that Mr. Farmer either not grow more than so much corn or that he grow so much corn. If you don’t like this result, take it up with Chief Justice Marshall and the men who wrote the Constitution or, better yet, with your elected representatives.