Justice Schumer’s Dirk

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Senator Schumer, questioned Sunday by Savannah Guthrie on Meet the Press, offered an illuminating disquisition on the Obamacare lawsuit now being decided by the Supreme Court. He’s convinced that, despite the hostile questioning of the government’s lawyer, the Nine are going to rule that Obamacare is constitutional. We don’t know what the Nine are going to do. The senator didn’t use his trademark phrase by suggesting that a “dagger” is going to be put through the heart of the Constitution. He did predict that the court will sustain what he calls “a broad tradition of support for extension of the Commerce Clause.”

Now, feature what he had to say in respect of the famous case of Alfonso Lopez. The case, called United States v. Lopez, was decided in 1995 and marked the first time since the New Deal that the Supreme Court threw out a law because it reckoned the matter wasn’t in interstate commerce. Mr. Lopez was a high school student in Texas when he was arrested for bringing a gun to school. He didn’t use the gun, but he was brought up on charges of violating a new federal statute called the Gun-Free School Zones Act of 1990. He challenged the law by saying that the commerce clause didn’t give Congress authority to regulate carrying a gun in school

The Supreme Court startled the Congress (and the Supreme Court bar and faculties that study the Nine) by ruling in Lopez’s favor. The vote, five-to-four, was close, but it was in Lopez’s favor. The court said the Congress hadn’t taken the trouble to assert that carrying a gun near a school affected interstate commerce. The Gun-Free School Zones Act’s problem, the Court said, was that it lacked a “jurisdictional element that would ensure, through case-by-case inquiry, that the firearm possession in question” would affect interstate commerce. Court-watchers reckoned the court was feeling around for the edge of where the power of Congress stopped.

Congress decided to rewrite the law, which it did by simply inserting into it, at President Clinton’s request, an amendment to parry the Court’s concern. The amendment made the law read as follows: “It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.” Since then, the law has been challenged a number of times, and so far the catch-me-if-you can game has been won by the Congress. The matter has not yet, however, come back to the Supreme Court.

Senator Schumer was asked about Lopez and another case by a savvy Ms. Guthrie on Meet the Press. “Yeah,” he replied, “ . . .but it’s totally different, and that’s because it had no effect on interstate commerce. If you want to make a law about a gun near a school, that doesn’t affect interstate commerce. Health care, of course, does. It’s 16 percent and half, 16 1/2 percent of the economy. If they were to throw out the healthcare law, things like Medicare, Social Security, food safety laws could be in jeopardy on the very same grounds. It would be a dramatic, 180 degree turn of the tradition of the Commerce Clause.”

What is illuminating about this is what it shows about the congressional mentality. Even today, Senator Schumer understands that the Gun-Free School Zones Act is not about interstate commerce. It’s about a highly ideological antipathy to guns on the part of the Democrats. The amendment to the Gun-Free School Zones Act is not about fidelity to enumerated powers. The amendment is about the word-games Congress plays to get around the Commerce Clause, which was originally intended not to grant Congress the power to do whatever it wanted but rather to block the states from setting up protectionist regimes that would hamper the trade of goods. The big test of the Obamacare lawsuit is not what the Court will say about health insurance but rather what it will say about the shenanigans that Congress plays to aggrandize its own power and about whether the judges are going to sit for it.


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