Health Care Reform-An Opportunity To Teach Part 2

One of the few things that one looks forward to in the generally miserable journey that is law school is Constitutional Law. Because that's where you get to the hot parts: Freedom of Speech. Miranda. Abortion. Civi Rights.

Wrong. You start off with the concept of Judicial Review. You learn about the creation of the national banking system. And you learn about the Commerce Clause.

Article 1, Section 8 gives Congress the authority to "regulate Commerce....among the several states." The first Chief Justice was a guy named John Marshall. And he wrote in passing (which lawyers call dicta) that the Commerce Clause gave Congress the authority to regulate any interstate "commercial intercourse" however indirect. This power was plenary and absolute within it's sphere.

Indeed, the Supremes have held that Congress may regulate not only singular acts that have a substantial economic effect on on interstate commerce but also on acts that in the aggregate would do so. This has been case law since forever.

As I understand the argument, or at least one of the positions put forth by the Attorneys General that are seeking to have HCR declared unconstitutional, is that the Commerce Clause doesn't allow Congress to mandate citizens to purchase insurance. Maybe so, maybe no. At least this is a legal argument. Which is a step up from nutbar types spitting on Members of Congress as they go to vote. Or throwing bricks through Members of Congress's windows.

Lots of Commerce Clause cases go off on the cumulative effect of a decision not to obey a Federal law. Which are passed by Congress and stuff. My favorite is Katzenbach vs. hell, somebody. Back in the Fifties. Involved a bbq joint in Alabama called Ollie's that wouldn't let black folks eat there. The Feds sued. The Supremes,relying on precedent going back to Marshall, said that the potential of every bbq joint in Alabama taking this position would be enough to violate the Commerce Clause. So there you go.

The Ollie's bbq case ( And, coincidentally, I have eaten there) stands for a plausible interpretation that the Government can penalize those that don't buy insurance because the cumulative effect of enough people refusing to do so would affect interstate commerce. Remember, Ollie's didn't DO anything. It REFUSED to serve black customers.

Now I don't sit around all day and practice Constitutional law. But neither do you most likely. And I have no idea how the Supremes are eventually going to come down on this. But all this talk about Health Care Reform "shredding the Constitution" is nonsense. Most commentators that I have read have opined that the AGs arguments are a stretch at the least. Indeed, the Attorney General of Arkansas has stated that he would not join in with the other AGs for the reason that their legal argument is both frivolous and primarily political in nature. To that I would add that their lawsuits may not even be ripe for adjudication. The damn law hasn't been finalized yet. Hell, they filed their suits before Obama even signed it!

The United States Government has been promulgating and enforcing laws pursuant to the Constitutional mandate that the power to regulate interstate commerce resides strictly in the Congress since the earliest days of the Republic. Whether one agrees with it or disagrees with the new law, it is the law. It just won't go into effect until the Congress quits tinkering with it.

Really. No kidding.