A four-part series on the relation and effects of the Commerce Clause on Health CareBy: Thomas W. Loker
The following is the second segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.
In the last segment, Clear Words – Muddy Intent, we discussed the evolving debate over what most people, on the surface, seem to be a simple, clear, and concise statement about where the federal branch of government’s responsibility is related to commerce begins ends. The direct and straightforward interpretation that most laypeople draw from the Commerce Clause—which is an “enumerated power” in the United States Constitution (Article I, section 8) that provides that Congress has the power ” To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”—is that when commerce transpires among the states, as in between one or more states, then the federal branch is responsible for providing regulations that control such commercial transactions. When commerce is between citizens inside a state’s boundaries, then it is the state’s responsibility to regulate those transactions. This seems clear to most people, but…
Over the past several hundred years, intelligent men (perhaps sometimes not-so-intelligent) often trying to secure honorable goals (OK, sometimes selfish goals) for the common good, (yes, sometimes not for the common good at all) have parsed, prodded, twisted and convoluted these sixteen simple words into marvelous interpretations that confound the average person’s intellect.
Filburn was growing more wheat than allowed—even though it for private consumption. He was fined and ordered to destroy his crops by the federal government.
The historical applications of the authority as interpreted under the sixteen words in this clause have ranged from the sublime to the ridiculous. In Wickard v. Filburn, 317 U.S. 111 (1942), the U.S. Supreme Court upheld a lower court’s decision that increased the federal government’s power to regulate what would seem to most a state-based, perhaps private activity. Roscoe Filburn was growing wheat for his own consumption. As part of the “New Deal” legislation, rushed through congress to ameliorate the effects of the Great Depression, The Agricultural Adjustment Act of 1938 limited the area in which farmers could devote to wheat production. Filburn was growing more wheat than was permissible—beyond the limits even though it was not for sale. Filburn intended it for private consumption. Ultimately, he was fined and ordered to destroy his crops. The courts found that because Filburn was growing more wheat than allowed, his actions somehow reduced the amount he would have purchased on the open market. Simply because wheat was traded nationally, the courts maintained Filburn’s acts affected interstate commerce, which meant that he was under the federally regulated mandate of the court’s interpretation of the Commerce Clause.
It seems that it is a dangerous and challenging stretch to view the Commerce Clause as a law that allows the federal government unfettered license to restrict individual freedoms in the same manner as the restrictions against Filburn. By nature of the argument as upheld in Filburn, any self-reliant activity could be determined to impede commerce in that if I, as an individual, grow it, hunt it, or fish it, then I am not purchasing the item from others, and therefore am affecting interstate commerce. I further find the argument specious in that there is no basis to determine, other than abject supposition, that should Filburn have not grown his wheat himself, the wheat would have been purchased from an interstate supplier instead of an intrastate source. More likely, in keeping with the times, he would have bartered for the un-grown grain in the first place. I believe this is a dangerous expansion of federal powers that directly and potentially infringe permanently upon Filburn’s liberties which, in the end, caused him economic harm.
If this remains the modern interpretation of the Commerce Clause, then it would be clear that the mandate to purchase health care, as proscribed by the PPACA, strictly by the historical definition as decided in Wickard v. Filburn is therefore constitutional because any commerce between parties, even intra-state, can affect the purchase of goods and services inter-state. Further, using the same logic, any effect that the lack of purchase could have on the cost of care to others within a state to offset the cost to the individuals supported by the state’s health systems, including private insurance, Medicaid, community-based, etc., would also become subject to the federal regulation under the commerce clause.
There are at least two flies in the ointment to these arguments. As discussed in the Wickard v. Filburn case, one fly is the obvious one. It is an enormous conceptual leap for most ordinary people to see how Mr. Filburn’s actions should have been subject to federal intervention in the first place. But the second and more interesting argument is based on how insurance is provided to citizens of the states in the first place and the resistance by some in the federal government to have a national insurance market at all.
Today, insurance within states is subject to regulations that exist in, and are specific to, each state. Health care provided within one state is subject to the health regulations of that state. There is little to no, transportability of an insurance policy for a worker in Pittsburg, Penn. to have the same policy in San Francisco, Calif. Recently, during a congressional hearing on tort reform, one democratic congressional representative (and noted constitutional lawyer) remarked—and I will paraphrase here—that since health care was not provided in a manner that it crossed state lines, that in every case he was aware of such care was provided within the jurisdiction of the state, and since he had never heard of care being provided in any hospital where the patient receiving care, or the hospital itself for that matter, existed simultaneously in two states at the same time, therefore, in his learned opinion, tort reform was a state’s rights issue and not subject to federal jurisdiction under the commerce clause. So how is it that the previous statement can be factual and true, while at the same time Wickard v. Filburn is also true? One of them must be a dangerous canard! But the critical question is which one? This is THE question that today we, the people, must decide as the outcome of this decision will either fundamentally empower us or further restrict our lives and liberties. This must be our collective choice alone.
In the next installment, we will look at other regulations and decisions by the courts that further confound this vital determination and, most importantly, further expand the gulf between the ordinary ability of an average person to read and understand everyday language and the legal wrangling and interpretations that follow.
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