GUEST COLUMN: Constitution's ‘commerce power' doesn't permit Obamacare

The President’s new health care law is now the focus of two national debates — one about policy, one about the Constitution. Most of the attention in the constitutional debate has been about the law’s mandate that individuals buy health insurance. But the constitutional issues also include whether the federal government should be regulating health care at all. The Founders would have said “no.”

The United States Constitution is not only law; it is Super Law. It trumps all other man-made law. It is an honored document that enables our political system to work while protecting us from tyranny.

At the heart of the Constitution is how it divides power to ensure that no set of politicians becomes too strong. It restricts the federal government to a set of listed (“enumerated”) powers. Other governmental functions are left to the states.

When I began teaching constitutional law, I was shocked by how many students had not learned that the Constitution restricts the government to enumerated powers. Yet most of the Founders believed this limiting system was more important to protecting our freedom than even the Bill of Rights.

Does the Constitution give the federal government authority to run health care? Some argue that the Constitution’s Interstate Commerce Power grants this authority.

They are wrong.

The Interstate Commerce Power comes from two separate clauses in the Constitution. The first gives Congress authority to “regulate Commerce . . . among the several states.” The second grants Congress authority to “make all Laws which shall be necessary and proper” for carrying out regulation of interstate commerce.

What does the Constitution mean by “regulating commerce among the states?” When you interpret a legal document, you investigate what it meant to those who adopted it. In the case of the Constitution, we have to examine what the phrase meant to our Founders.

For years, I have been immersed in the historical evidence on that subject. The evidence tells us that when the Founders granted power to regulate commerce among the states, they authorized Congress to govern how merchants bought and sold products across state lines. They also included certain closely-connected activities, such as interstate transportation. But the power to regulate commerce did not include the make-up or production of the item sold. Activities such as farming, manufacturing, and health insurance were subjects for state, not federal, regulation.

To be sure, a handful of “progressive” writers recently have claimed that the Founders intended “commerce” to include all, or most, human relationships. To reach that conclusion, however, they have to disregard the overwhelming weight of the evidence, as Independence Institute Research Director Dave Kopel and I point out in an article at constitution.i2i.org

The Supreme Court seems to concede that “commerce” is a limited subject. But it has ruled that the other part of the Interstate Commerce Power — the Necessary and Proper Clause — entitles Congress to regulate almost the entire economy. The reasoning rests on the fact that economic activities such as farming, manufacturing, and insurance “substantially affect” interstate commerce. Advocates for the health insurance law argue that it is constitutional because it regulates an economic activity that “substantially affects” interstate commerce.

The background of the Necessary and Proper Clause shows that this reasoning is in error. Leading Founders, including Alexander Hamilton, explained that the Necessary and Proper Clause does not actually grant any authority. It simply clarifies that the power to regulate commerce includes power to oversee certain “incidental” activities — such as obtaining office space for the regulators or requiring that goods shipped across state lines be properly labeled. The Necessary and Proper Clause does not empower Congress to seize control over every citizen’s health care decisions merely because those decisions somehow affect commerce.

The Constitution does allow the states to set up their own health care systems, as Oregon, Tennessee, and Massachusetts have done in recent years. But for better or worse, it does not authorize the government to impose a one-size-fits-all national system.

Rob Natelson is a former Professor of Law at the University of Montana and current Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Golden. He is author of the new book,"The Original Constitution: What it Really Said and Meant"