The Commerce Clause & Nullification: Obamacare

This current event introduces two concepts that warrant discussion:  the commerce clause and nullification.

Article I, Section 8, Clause 3 of the U.S. Constitution grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”¹

The commerce clause has historically been viewed as both a grant of congressional authority and as a restriction on states’ powers to regulate. The “dormant” commerce clause refers to the prohibition, implied in the commerce clause, against states passing legislation that discriminates against or excessively burdens interstate commerce.²

While Congress is clearly given authority to prevent states from legislating trade barriers amongst each other, authority to regulate any further than that is arguable.

The meaning of the word “commerce” is a source of much of the controversy.  The Constitution does not explicitly define the word.  Some argue that it refers simply to trade or exchange, while others claim that the founders intended to describe more broadly commercial and social intercourse between citizens of different states. Thus, the interpretation of “commerce” affects the appropriate dividing line between federal and state power.²

That sums up the commerce clause, without getting too much into the arguments about the scope of authority.

An individual mandate is a requirement by a government that certain individual citizens purchase or otherwise obtain a good or service.³

In short:  the Supreme Court is deciding, among other issues, whether the individual mandate to purchase health insurance is constitutional under the commerce clause.  The decision should be made today, but the written decision will not be public until June.

This law was written in 2010, and the reason that it only took two years to get to the Supreme Court is likely political, since it usually takes much longer for a case to be selected for hearing by the court, if it is selected.  At least twenty-six states oppose Obamacare, yet a federal court is deciding whether the citizens of these states must abide by this law?

The unelected, unaccountable, politically-connected lawyers which make up the Supreme Court have done an absolutely horrible job of upholding the Constitution. In fact, from 1937-1995 the Supreme Court didn’t rule one single congressional act to be outside of their constitutional limits. 60 years – they ruled absolutely nothing unconstitutional, and that included much of the New Deal and all of the Great Society. Since that time, overruling Congress has been a rare occurrence, at best.⁴

Is the Supreme Court the proper venue for this issue?

When the federal government claims the power to determine the extent of its own powers – unlimited government is already here.⁴

The legal answer lies in the Tenth Amendment to the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.⁵

There is a remedy to the overreach of the federal government: nullification.

When a state nullifies a federal law, it is proclaiming that the law in question is void and inoperative, or noneffective, within the boundaries of that state; or, in other words, not a law as far as the state is concerned. ⁶

Essentially, nullification is a declaration by the state that the federal law in question is unconstitutional and will not be enforced.  A court case may never even make it to the Supreme Court, and it’s difficult to get Congress to repeal statutes.  However, nullification takes place at the state level, which is a much more accessible political arena.

Further:

In the Kentucky Resolutions of 1798, Thomas Jefferson wrote: “The several states composing the United States of America are not united on the principle of unlimited submission to their general government” and “where powers are assumed [by the general government] which have not been delegated, a nullification of the act is the rightful remedy.” ⁶

James Madison, in his Virginia Resolution of 1798, asserted the core premise of all nullification laws– that state governments not only have the right to resist unconstitutional federal acts, but, in order to protect liberty, they are “duty bound to interpose,” or stand between, the federal government and the people of their state” ⁶

Finally, Obamacare is the perfect example of the involuntary nature of each branch of the federal government.  The legislature writes the involuntary law, the judiciary upholds it, and the executive sends you to prison if you don’t follow it.

1. Constitution of the United States of America(1787) http://billofrightsinstitute.org/founding-documents/constitution/
2. Commerce Clause http://www.law.cornell.edu/wex/commerce_clause
3. http://en.wikipedia.org/wiki/Individual_mandate
4. http://tenthamendmentcenter.com/2012/03/28/on-mandates-and-everything-else-dont-count-on-the-courts/#more-12175
5. Bill of Rights of the United States of America(1791) http://billofrightsinstitute.org/founding-documents/bill-of-rights/
6. http://www.tenthamendmentcenter.com/wp-content/uploads/documents/talkingpoints/Nullification-Brochure.pdf

Sketch of Supreme Court Hearing on Obamacare.