Health Care Nullification Talking Points

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1. Like any legal document, the words of the Constitution mean today the same as they meant the moment it was ratified.

2. The power to regulate commerce among the several states was delegated to the Congress in Article I, Section 8, Clause 3 of the Constitution. As understood at the time of the founding, the regulation of commerce was meant to empower Congress to regulate the buying and selling of products made by others (and sometimes land), associated finance and financial instruments, and navigation and other carriage, across state jurisdictional lines. This power to regulate “commerce” does not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor does it include activities that merely “substantially affect” commerce.

3. Article I, Section 8, Clause 1 of the Constitution, the “general welfare clause,” is not a blank check that empowers the federal government to do anything it deems good. It is instead a general introduction explaining the exercise of the enumerated powers of Congress that are set forth in Article I, Section 8 of the Constitution of the United States. When James Madison was asked if this clause were a grant of power, he replied with “If not only the means but the objects are unlimited, the parchment [the Constitution] should be thrown into the fire at once.” Thus, this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States.

4. Article I, Section 8, Clause 18 of the Constitution, the “necessary and proper clause,” is not a blank check that empowers the federal government to do anything it deems is necessary or proper. It is instead a limitation of power under the common-law doctrine of “principals and incidents,” which allows the Congress to exercise incidental powers. Two main conditions are required for something to be incidental, and thus, “necessary and proper.” The law or power exercised must be 1) directly applicable to the main, enumerated power (some would say that without it, the enumerated power would be impossible to exercise in current, common understanding), and 2) lesser than the main power.

5. The Commerce Clause, the General Welfare Clause and the Necessary and Proper Clause have not been amended.

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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