by Michael Maharrey

Imagine you wake up one morning and walk down into your basement to find that while you slept a pipe burst, spewing hundreds of gallons of water into your cellar. To your horror, swirling water already reaches above your knees.

You immediately go to your main water shut-off, only to find it completely jammed. So, you call a plumber, who informs you that he will come as quickly as possible.

According to Plumber Gilbert in AZ, in plumber parlance, this means a couple of hours. When he arrives, water flows above your waist. But whatever this particular plumber may lack in speed, he makes up for in efficiency, and within moments he shuts off the flow of water and proceeds to fix the broken pipe.

A couple of hours and several hundred dollars later, the plumber leaves you with a brand new, leak free pipe. In all likelihood, you would feel a great sense of relief and perhaps even a touch of euphoria knowing that the pipe was fixed and  water was no longer free-flowing inside your home.

Just one problem – you still have several feet of water standing in your basement.

Cleanup wasn’t in this particular plumber’s job description.

The recent ruling striking down the insurance mandates in the federal health care legislation leaves me feeling a bit like the man in this little tale. I’m excited that a judge got it right – at least within the narrow scope he addressed. But when it’s all said and done, I still have a bunch of water in my basement.

First the good news.

U.S. District Judge Henry Hudson  understood the Constitution well enough to reason that the founders never intended a power to force citizens to engage in commerce.

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I….

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, the dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it’s about an individual’s right to choose to participate.

Hudson stopped the leak.

And while I see this as a positive, I still can’t bring myself to join in with those applauding the ruling as a great victory for the Constitution.

My basement remains full of water.

Although Hudson struck down the insurance mandates, reading through the entire decision reveals that he has no issue with the notion that the federal government has the power to regulate health care. He accepts the expanded view of the commerce clause formulated by the courts since the 1930’s. He takes no issue with Wickard v. Filburn, a ruling that held the federal government could fine a farmer for growing wheat for his own use, even if it never left the farm, reasoning that his consumption of his own wheat still had a substantial effect on the interstate market. And he consistently uses the terms “commerce” and “economic activity” interchangeably.

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But the founders did not understand commerce to mean all economic activity. Constitutional scholar Robert Natelson did extensive research on the word “commerce” and found that its meaning, as understood in the 18th century, centered around trade. Not manufacturing. Not agriculture and certainly not health care.

The framers granted Congress authority to regulate interstate commerce simply to prevent states from imposing tariffs on one another, thus inhibiting trade. It was never intended as a positive power allowing Congress to implement regulations on things like health care. James Madison made this clear.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

When applying a proper understanding to the framers’ intent in granting Congress the authority to regulate interstate commerce, the Tenth Amendment Center holds that regulation of health care lies outside of the enumerated powers granted to Congress and therefore the entire health care bill is unconstitutional – not just the insurance mandates.

But the courts have stretched the commerce clause so far beyond its original intent and meaning as to render it almost all encompassing.

Hudson’s ruling places a roadblock in the progressive drive to grant Congress unlimited power to regulate virtually everything. And it certainly creates problems for President Obama and those seeking to expand the role of government in health care.

But it does nothing to restrain Congress from exercising power never intended by the founders. It does nothing to roll back more than 50 years of unconstitutional judicial interpretation. (For more on the judiciary as the final arbiter, click here.) And it does nothing to stop Congress from meddling in health care.

The Tenth Amendment Center applauds efforts to curb federal power from every front. But it is our view that the states will ultimately have to take matters into their own hands and nullify unconstitutional acts such as the federal health care legislation. We simply cannot put our faith in the federal judiciary to limit federal power.

As Thomas Jefferson said, nullification is the rightful remedy.

CLICK HERE to read about legislation in Texas that will do just that.

The 10th Amendment

“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.”



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