Glint of Bedrock

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The New York Sun

The decision of the Supreme Court sustaining Obamacare is one of those moments in our country’s history when all can catch the glint of American bedrock. The dross of politics is swept aside, and there the bedrock sparkles. All over the country, farmers, teachers, lawyers, businessmen, builders — all kinds of people — are marveling at it. They are reasoning out what the court said and why it said it. Some will be thrilled, others disappointed, and nearly all respectful. Once the court’s reasoning is digested, Americans will adjust their politics accordingly.

What stands out for us in the ruling today is that the Court rejected the notion that Congress can force someone to purchase health insurance because of the clause that grants to Congress the power to regulate commerce among the states. Obamacare is sustained under only the taxing power. Taxing is clearly an enumerated power; it is always going to be the Democrats’ favorite among the enumerated powers. But it’s no small thing that the Democrats turned out to be wrong when they claimed Obamacare could be passed under the commerce clause.

Let us savor the moment. When Obamacare came up for a vote in the Senate, after all, a constitutional point of order was raised by the Republicans. Senators Ensign and DeMint demanded to know under what power the Senate would be acting. Answering for the Democrats, Senator Baucus asserted that the Congress had the power under the general welfare clause and the commerce clause. The states have won a big victory today in the court’s ruling that, in fact, that commerce clause does not give the Congress the power to do what it was doing.

The idea that the Congress can do whatever it wants under the commerce clause is one of the most pernicious in our jurisprudence. It was ginned up after the New Deal was brought almost to a halt by a unanimous Supreme Court ruling against FDR in the case of Schechter Brothers Poultery. FDR had tried to regulate the brothers, and prosecute them criminally, under the National Industrial Recovery Act, which was the centerpiece of the New Deal. FDR claimed the power under the commerce clause. The court ruled against him nine to zero. Then a constitutional counter-revolution began, and the government eventually gained the power to use the commerce clause to forbid a farmer from growing wheat on his own land for his own use.

Then came a professor from the University of Chicago, W.W. Crosskey, arguing that the commerce power was the most important non-military power the government had. It could be used to regulate not only commerce among the several states but any commerce. Crosskey went so far as to suggest that James Madison doctored his famous notes on the federal convention at which, in 1787, the Constitution was drafted. He theorized that Madison had second thoughts about the commerce clause and wanted, with hindsight, to make it weaker than it was. Crosskey’s arrogance has infected the Congress up to this day. So it was a satisfying moment to see Chief Justice Roberts, and the court majority, make it clear that there are limits on the commerce clause.

The court’s ruling that Congress does have the power to pass Obamacare under the taxing power is, to put it mildly, unconvincing. The court acknowledged that the Patient Protection and Affordable Care Act itself refers to the mandate by describing the consequences of a failure to obtain health insurance as a “penalty.” It says that the use of that description is “fatal” to the applicability of a law that says the court can’t hear a tax case at this stage of things, since it’s a penalty and not a tax. Then it turns around and says it’s not fatal to the ability of Congress to use the taxing power to pass the mandate in the first place. This is what the Chief Justice of the United States, John Roberts, calls a “functional approach.”

Our guess is that distinction will strike most people as a lawyer’s self-parody. But we’re for bowing to the Court and throwing oneself into the political fray. The Court’s ruling sets up Governor Romney to remind us again that the taxing power is the most dangerous of the powers handed to the Congress. And that when the Democrats get ahold of the Congress, they will use it in every way they can — even in requiring an innocent, law-abiding citizen who is beyond the reach of the Commerce Clause to purchase health insurance. It is a moment to remember that if the Obamacare mandate is a tax, then it is something that can be cut or repealed, as thousands of other taxes have been in the history of our country, almost always to beneficial effect. That is, after all, the bedrock on which our entire revolution began.

The New York Sun

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