The Interestate Commerce Clause & the Kitchen Sink

www.joytiz.com ^ | 3/23/10 | Joy Tiz

[jazminerose]

Thirteen state attorneys general are challenging the constitutionality of the health crimes bill signed by the president this morning. The states are correctly asserting that the legislation is unconstitutional and should be struck down, ideally in its totality.

Liberal pundits have been delivering their talking points, letting us know that they plan to seek cover under the Interstate Commerce Clause of the United States Constitution. Article I, Section 8 specifically empowers the Congress to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Despite what liberals want you to believe, the Constitution actually gives very few powers to the federal government; and if that power is not specifically spelled out, it was meant to go to the states.

Let’s dispense with the supremacy clause. Democrats are insisting that federal law always trumps state law when there is a conflict. (Apparently, that doesn’t apply in Chicago when the issue is the 2d Amendment, however). They are only partially correct. Congress is not free to pass any unconstitutional statute it pleases, supremely confident in the knowledge that their rule always wins. Virginia Attorney General Ken Cuccinelli has it right:

[5thGenTexan]

The Commerce Clause covers commerce (among the states", i.e. interstate commerce. Health insurance cannot be sold across state lines and is intrastate commerce only.

[OldGuard1]

That’s nice wishful thinking, but even after the Rehnquist court dialed back commerce clause enforcement (in, for example, overturning a federal law that prohibited carrying guns in a school zone), they still allowed all sorts of highly tangential commerce clause enforcement. For example, our current federal drug laws are entirely reliant on the commerce clause. That’s how the CA medical marijuana act was overturned, even though the pot was only grown in CA, for consumption in CA.

And this brings up another issue: the “Tax” argument. Before they switched to a commerce clause principle to enforce drugs, they used a tax principle. SCOTUS *also* has an overly broad reading of the feds’ power to tax. The only limit SCOTUS precident applies to federal taxation powers is that it can’t infringe on an enumerated fundamental right; not having healthcare is not a fundamental right. You might be able to get a religious exemption, but that’d be a pretty small hole in the bill.

And then there’s the third way congress can force it on us: by threatening to take away all state funding to any state that doesn’t pass it locally, if the first two options are closed to them. This virtually always works; our states are now so dependent on suckling from the feds’ teat that they’d collapse if funding was withheld.

[OldGuard1]

Even the Rehnquist court, which helped dial back the powers of the clause, agreed that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities".

This is all just wishful thinking. Same with the "we'll just repeal it" crowd - as though Barry would sign a repeal, or as though people won't be dependent on the handouts by the time he's out of office, just like with medicare, medicaid, and social security. We lost. Big. Now let's make sure we don't let the same thing happen with amnesty, or this country will be lost for decades or more.

[Right Cal Gal]

Here’s one question that’s bothering me, and since it’s been so long since this monstrosity first began and Congress began its pretzel-like machinations, that I’m hoping a Freeper with a great memory can help.

Is the Senate bill that was sent to the House after Christmas a bill unto itself that originated in the Senate for approval or the Senate’s changing of the bill that was passed in the House last year, with their yanking and pulling and twisting?

[RobRoy]

I see the US as a brick wall with a thin mortar holding it together. The bricks are the states and the mortar is the FedGov. There are two ways the FedGov can be involved in what goes on in the bricks.

1. Relations between the bricks.
2. The constitution of the US clearly states what rights all citizens within the wall have. Therefore, if one of the “bricks” attempts to limit that right, the FedGov becomes involved.

Would someone please tell me which of these two apply to this health care bill and what language supports it. Otherwise, it is utterly unconstitutional.

[jazminerose]

That’s the common sense interpretation.

However, if you read the article, you will see how the courts expanded the definition to the point of insanity.

[AFPhys]

The Senate Bill is completely started in the Senate. It did not depend at all on the House Bill language or in any other way.