“ObamaCare,” the Constitution, and Democracy: The Heart of the Matter (2012)

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by Jane Anne Morris

In 2012, the U.S. Supreme Court will rule on the constitutionality of the Obama Health Care Plan (OHCP), officially the Patient Protection and Affordable Care Act (2010).1 Is OHCP constitutional? What is a defensible and prudent green position on this question?

Shrill arguments accompanied several cases challenging the law as they worked their way through the federal courts. Governors and/or attorneys general of 26 states jointly brought one of the cases. Most are Republicans, but Democrats have also supported the challenges. At least fifteen states passed laws or constitutional amendments opposing the OHCP.2 This level of official, organized state opposition to a duly passed Congressional Act may not be unprecedented, but neither is it an everyday occurrence.

The largely Republican-led attack comes despite the fact that the major bone of contention — the “individual mandate” — was first proposed by the conservative Heritage Foundation in 1989, and twice introduced to Congress in Republican-sponsored bills in 1993.3

Before dipping into the minutiae of encrusted precedent that will be picked through and reinterpreted as the U.S. Supreme Court considers this case, I offer some framing observations.

  1. If it continues a clear trend established by three Supreme Court cases between 1995 and 2000, the high court will find OHCP’s individual mandate (and perhaps the whole Act) unconstitutional.
  2. Whatever one’s opinion on the health care law, the future of federal environmental law, labor law, gun control, and human and civil rights law will be affected by how the Justices rule on OHCP.
  3. The OHCP case is only peripherally about health care. The spectacle of the U.S. Supreme Court considering this high-profile case puts on display the breadth and depth of power wielded by the this court. Because liberals and conservatives each accuse the court of judicial activism only when they disagree with its rulings, little attention is paid to the disturbing uniqueness of the Supreme Court, literally the most powerful court in the history of the world.4

I bring to the issue of the constitutionality of OHCP considerable baggage, but it is good baggage. First, I am agnostic about the OHCP; second, my most recent book is a history of the constitutional clause that is at the center of debate.5

As a longtime proponent of single payer health care, I find that our current unjust, inefficient, appallingly complex health care system (“capitalized medicine”) has little to recommend it.6 The OHCP would rearrange costs and benefits somewhat without bringing overall improvement. Losers include the unemployed, underemployed, and uninsured, who would face a forced choice between buying health insurance (not the same as health care), and paying a fine for not doing so. (This feature of OHCP is known as the “individual mandate.”) The OHCP is not a single payer system, not a step toward one, and not an improvement on current health care in the U.S. Whether it’s “constitutional” or not is for me no more consequential than the difference between regular and menthol cigarettes.

As author of a book about the constitutional clause critical parts of the law depend on, I see the debate over the law’s constitutionality in the context of two centuries of judicial rulings on that clause.7 Consequently, I am buffeted not by the huffing and puffing of supporters or opponents, but the gusts of historical precedent that Supreme Court Justices have at their backs as they evaluate the OHCP.

Ahead of the Supreme Court’s ruling on OHCP, as those in favor argue that it is constitutional, while those opposed insist that it is not, the accompanying discussion is not often very enlightening. We are served up a sloppy rehash of already-made points, spiked with a selective culling of judicial precedent thrown in for credibility’s sake. At the law review journal level, all manner of arcane arguments are being reworked and reinvented to provide a panoply of possible reasoning sequences for virtually any interpretation.8 It’s as clear as Rashomon in the emergency room.

The Two Faces of Constitutionality

To say, “States can require car insurance, so the U.S. can require health insurance”—a one-liner I have heard often—is to conflate two incomparable circumstances. State and federal governments are not just different-sized governments like little carrots and big carrots: they are different types of governments with different powers. Federal laws are subject not to a higher or lower constitutional standard than are state laws, but a different one.

It is only a slight oversimplification to say that state laws are constitutional unless they conflict with the Constitution, while federal laws are unconstitutional unless they are authorized by it.9 Every country’s constitution lays out how power is distributed between the national government, and other parts. The U.S. Constitution outlines what the federal government can do, what the federal government cannot do, and what the states cannot do. There is no listing of what the states can do,10 because all other powers reside in the state governments, or in the people, as outlined in the Tenth Amendment.11 I do not consider the U.S. Constitution to be sacred, and, would make many changes if I had the chance to rewrite it. But currently, our constitutionally established national government is a federal one.

That makes the U.S. a nation of delegated or enumerated powers: certain specific powers (and those only) are delegated by the people and the states (via the Constitution) to the federal government. If the Constitution were a diet, the federal government would choose from a limited list of permissible foods, but state governments could pick anything unless it appeared on a Do Not Eat list. Congress (and the federal government) can do only what is specifically allowed by the Constitution, whereas states can do anything that is not prohibited.

In light of the enormous power currently exercised by the federal government, it seems far-fetched that it is one of limited power. The bridge between the limited-power structure of the U.S. Constitution, and the expansive nature of national power wielded today, is the interpretive power of the Supreme Court. Woodrow Wilson once remarked that the Supreme Court was like a “constitutional convention in continuous session.”12

This court, once referred to as “nine scorpions in a bottle”13 will decide the fate of OHCP. The essential question is: does the U.S. Constitution give Congress the power to pass a law like OHCP, with its individual mandate?

Latching onto the Constitution

Anything Congress does must be justified by linkage to something in the Constitution that makes it “allowable.” For example, the original Social Security Act (1935) is hooked to the general welfare clause.14 Often, Acts of Congress begin with litanies of purposes specifically worded to hook a given piece of legislation to one or more constitutional clauses that justify them. Such tags help to inoculate laws against being declared unconstitutional by the judiciary. The general welfare clause was tapped again to justify the power of Congress to establish NASA in 1958.15

“Naked” Congressional Acts lacking protective language pegging them to a Constitutional clause are more vulnerable to the charge that nothing in the Constitution permits such actions. Unprotected Congressional Acts are more susceptible to being declared unconstitutional by the judiciary, which is often prompted by corporate lawyers seeking to quash legislation that their corporate clients dislike.

Controversial federal legislation goes through life precariously pinned to the constitutional clause or clauses that give it validity. Though this labeling provides some cover, it is not foolproof. While Congress can embed hooks in the legislation, the Supreme Court can refuse to recognize them as sufficient. On the other hand, the Supreme Court can find constitutional justification where Congress didn’t think to look. (I’ll refer to this option later).

Sometimes debate rages over which Constitutional linkage best suits the legislation. Many supporters of the National Labor Relations Act (1935), for instance, viewed the bill as a matter of fundamental rights for workers, and so sought to ground it in the Thirteenth Amendment, the Fourteenth Amendment, and the general welfare clause. By the time of the final wording, however, it was hooked to the Constitution on much narrower and less lofty grounds: the protection of commerce. The word “commerce” appears seven times in the first paragraph of the Act.16 In fact, the Great Depression saw the beginning of the use of the commerce clause to anchor an increasingly wide range of federal legislation.

Commerce as the Hookup Clause

As the size and power of the federal government expanded, so has the range of federal legislation that had to be “hooked up” to the Constitution. After a slow start, the commerce clause became the workhorse bearing a freakishly broad range of legislation on its back. The Obama health care law specifically links the individual mandate to the commerce clause.17

The commerce clause is the third clause in Article I, Section 8 of the U.S. Constitution, which is the inventory of things that Congress may do. (Among other specifically allowed actions are collecting taxes, establishing post offices, setting up a federal court system, and declaring war.) In the diet analogy, the commerce clause is part of the “permissible foods” list. The commerce clause states, “Congress shall have power to regulate trade…among the several states.”18 The connection to health care is not self-evident, but is foreshadowed by the commerce clause’s reputation for being everything to everybody…until it is not.

From about 1935 to 1995, the commerce clause was the “go-to” clause for federal legislation needing a reliable constitutional perch. Much twentieth century federal civil rights legislation stands as constitutional today not because of Thirteenth, Fourteenth, or Fifteenth Amendment justification, but because it was upheld under the commerce clause.19 Many applications of the Safe Water Drinking Act, the Clean Air Act, the Mammal Protection Act, the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, the Clean Water Act (especially wetlands), the Endangered Species Act, the Surface Mining Act, and the Animal Welfare Act depend for their constitutionality on commerce clause arguments.20 Looking ahead, then, if the Supreme Court finds that the commerce clause does not give Congress the power to pass the OHCP, the linkage of a wide range of other federal legislation to this clause will become more precarious.

Sorting out the judicial reasoning around this clause is as complex as figuring out a hospital bill. Links to the commerce clause became increasingly indirect, even convoluted. My favorite example, among many, affects wetlands protection and is known as the “reasonable bird rule”: the (federal) Clean Water Act applies to seasonally damp spots in farmers’ fields if migrating birds that cross state lines might reasonably be expected to pause there for refreshment.21 (There are hundreds more examples in my book.) The commerce clause has supported so varied a legislative platter that one federal judge referred to it as the “Hey-you-can-do-whatever-you-want” clause.22 In the diet analogy, it’s as though the Constitution told Congress it could eat fruits and vegetables, and after two centuries of judicial rumination, that meant cherry soda and ketchup.

A huge proportion of the liberal/progressive agenda hangs on commerce clause supports that are so rhetorically loopy that one legal historian has confessed that much of it doesn’t pass the “giggle test.”23 Most of this nation’s “progressive” eggs lie in one giggly constitutional basket full of “reasonable bird” rules and the like, with residency privileges refereed by an increasingly powerful, not to say imperious, Supreme Court.

OHCP’s Shaky Moorings

But then, rather suddenly, the commerce clause basket was jostled, then shaken. After sixty years without declaring a federal law unconstitutional under commerce, the Supreme Court did it three times between 1995 and 2000: twice on gun control and once on violence against women.24 In over 147 years, the court had declared only six Congressional Acts unconstitutional under commerce, so when it did so three times in five years, that constitutes a signal.

Numerous articles appeared heralding the end of the commerce clause’s reign as refuge for miscellaneous federal legislation. In Gaveling Down the Rabble, I suggested that this circumstance placed the liberal agenda in an exceedingly vulnerable position, just waiting for a “right”-leaning court to declare the commerce clause “hook” discontinued. Yet, even after the Supreme Court clearly signaled that it was having second thoughts about the appropriateness of using the commerce clause to support a laundry list of legislation, OHCP employs boilerplate language linking it to the same clause used to justify federal authority to build the Panama Canal: the commerce clause. (The argument was that the canal was sort of like an interstate highway system.)25

The section requiring universal purchase of health insurance dutifully outlines how the mandate is covered by the commerce clause. (First, health care and insurance affect interstate commerce.26 Second, Congress has already passed two Acts that regulate health insurance in interstate commerce, so federal involvement with insurance is not new.27 Third, the U.S. Supreme Court upheld federal regulation of interstate insurance in 1944.)28 Outside of the judicial context, these reasons make perfect sense, but they do not negate the effects of the three cases between 1995 and 2000, which clearly signaled a movement away from using the commerce clause to justify expansive federal powers. OHCP’s overt linkage to the commerce clause flouts fifteen years of judicial “Danger!” signs.

Two other constitutional clauses beckon as possible hooks for the OHCP mandate. One, already mentioned, is the general welfare/spending clause, which on its face reads as a kind of no-mess, no-fuss, over-the-counter “Yeah, sure” kind of clause. The other obvious possibility is the so-called “necessary and proper” clause,29 the last in the list of enumerated powers: Congress has the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States…” But OHCP mentions neither the general welfare nor the necessary and proper clause as potential constitutional hooks, instead clinging to commerce.

The same day OHCP became law, it was challenged (as promised). Less than a year later, a federal court declared it unconstitutional on exactly the grounds that the Rehnquist Court prefigured in the three “warning” commerce cases (1995 to 2000).30 Those grounds being, roughly, that the individual mandate cannot be justified as within federal power under the commerce clause.

The OHCP case is the current court’s first chance to take a crack at the commerce issue.

Can the Feds Force You to Buy Broccoli

One of the main arguments against expansive commerce clause power is the “slippery slope” argument: if the commerce clause can be used to justify such a wide range of Congressional Acts, is there in fact any constitutional limit on federal power? If Congress can force people to buy health insurance, can it also make people buy…mood rings? Lottery tickets? Bicycles? Fruitcake? Cell phones? Or, as suggested by recent Op-Eds, broccoli?31 The answer depends on the meaning of commerce.

Over the years (mostly since 1870), pinpointing the definition has involved questions such as: Is commerce an activity? Can NOT doing something be commerce, or affect commerce? Does that mean that the Congress can then regulate INACTIVITY, such as not buying something? What is the “nexus” of commerce? What is a “channel” of commerce? What is an “instrumentality” of commerce? What is a substantial effect on commerce? In transport, does “original container” mean a box of popsicles, or a single wrapped popsicle? Is manufacturing within a state interstate commerce if the parts were trucked in? If only the tools were trucked in? How about if only blueprints or financing were brought in? And, if a grain of grain, during interstate transport, is “stopped” at a transfer point or stop sign, is it still interstate commerce or does it temporarily “fall out” of the interstate commerce realm? (I’m not making this up; See Gaveling.)

I have read most of the Supreme Court’s commerce cases—(not recommended—read the highlights in my book instead)—and I am certain that there is no position, on any issue, that could not be convincingly supported by cherry-picking the accumulated verbiage. Justices, when deciding a case, comb through the curlicues of precedent the way preachers comb through Biblical verses for a scrap o’ scripture to support their political beliefs.

This should arouse concern, not just about OHCP, not just about the commerce clause, not just about federal power, but about the Supreme Court’s role in establishing both state and national policy. Not to mention the fact that we are trying to plumb the depths of the true meaning of “commerce” instead of debating health care. And if we must decide whether or not Congress can force us to buy broccoli, shouldn’t the matter be decided among people and their elected representatives, and not at an unelected, unaccountable tribunal of lawyers with life terms?

So, is it constitutional or not? True American Exceptionalism

Is OHCP constitutional? Sure. (Is cherry soda a fruit?) The health care law fits just fine within the poetic license of the “reasonable bird” and “stopped grain” jurisprudence long enjoyed by the commerce clause, no extra exertion needed.

Is OHCP unconstitutional? Sure. Given the recent trend toward narrowing the range of legislation that can be hooked to the commerce clause, it is completely reasonable and consistent with precedent to declare the act unconstitutional, as clearly overstepping the bounds of limited federal commerce power.

What if it were this difficult to tell when an apple is rotten, determine who won an election, diagnose a broken arm, or know when your bike tire is flat? In how many realms do we accept such nearly infinite, untrammeled, unending indeterminacy? Is being paralyzed by verbiage a necessary adjunct to constitutional government? Because we are so accustomed to it, perhaps we imagine that all courts work like this, but they don’t. This really is a case of American “exceptionalism.”

No other country allows its courts the unrestrained poetic license the U.S. Supreme Court exercises. Most countries expect that legislatures will debate the wisdom of laws, leaving the courts much more limited roles. For example, in the U.K, there is no law that Parliament cannot change, and there is no body that can invalidate an act of Parliament, except Parliament.32 As of 2000 there were only three countries in the world where a court can void a law by declaring it unconstitutional after enactment: the U.S., Canada, and Germany.33 Many countries have special constitutional courts that do nothing but determine constitutionality of laws before they go into effect. Others provide for legislative bodies—by simple or super-majorities–to overrule court declarations of unconstitutionality.

Judicial review of duly passed laws tends to occur in places where elites have general but not certain control over the electoral process. Court involvement can round off the edges of “rabble”-inspired laws, bog down an emergent democratic process, and ultimately take policymaking from legislative control. In socialist legal systems, judicial review is considered bourgeois, a tool of big capital.34 International comparative law scholar Ran Hirschl claims that recent increased judicial empowerment (Canada, 1982; New Zealand, 1990; Israel, 1992; South Africa, 1993) “is the result of a conscious strategy undertaken by threatened elites, seeking to preserve their hegemony.”35 Worldwide tendencies paint a big picture that is decidedly pro-“free trade” and antidemocratic. Hirschl continues:

“In short, a large-scale transfer of crucial policymaking prerogatives from majoritarian policymaking arenas to domestic and transnational semiautonomous and relatively insulated policymaking bodies such as national high courts, central banks, supranational trade organizations, monetary funds, and judicial tribunals has established itself over the past few decades.”36

The U.S. Supreme Court is Exhibit A for the success of this strategy. (See, U.S. history). The court will be ready and waiting if a universal single-payer system ever passes the Congress. In the meantime, the court will rule on OHCP. Because the OHCP is no threat to entrenched elites, it doesn’t matter so much to the status quo what the court decides.

Handicapping OHCP’s Chances in the Roberts Court

In the three cases (1995-2000) where the Supreme Court ruled 5-4 that the commerce clause could no longer be assumed to be an automatic “hook” for almost any federal legislation, the scorecard was the same in each case. Rehnquist, O’Connor, Scalia, Thomas, and Kennedy voted to limit commerce clause powers, while Breyer, Stevens, Souter and Ginsburg voted to uphold them. In 2005, when it came to a commerce-linked federal law that would void the more liberal California medical marijuana law, Kennedy (with Scalia concurring) joined the pro-commerce power side.37

By 2006 the Court had two new members, with Roberts replacing Rehnquist, and Alito replacing O’Connor. In an interesting 2006 case (Rapanos) that skirtingly revisited the “reasonable bird rule,” the federal commerce power was again diminished (5-4), with Roberts, Thomas, Scalia, and Alito holding against stretching the commerce power, and Kennedy joining them in an exceedingly nuanced concurring opinion. The remaining four continued to support the broader reading of federal commerce power.38 Then, Justice Sotomayor replaced Souter in 2009; Justice Kagan replaced Stevens in 2010.

Despite four new appointments since 2005, the current Court is much the same as during the 1995-2000 trio of cases. Roberts and Alito will probably continue the Rehnquist/O’Connor reluctance to condone use of the commerce clause to support broad federal power. In this they will continue to be joined by Scalia and Thomas. That’s four to limit commerce power (and by implication, void the OHCP individual mandate).

On the other side, Sotomayor and Kagan will probably continue the support for broad commerce power that their predecessors (Souter and Stevens) demonstrated, and they will probably continue to be joined in this by Ginsburg and Breyer. That’s four to support an expansive use of the commerce power to support federal legislation (including OHCP).

My prediction: Roberts-Alito-Scalia-Thomas will say that OHCP is obviously unconstitutional under commerce, and will cite the Lopez-Printz-Morrison trio of cases. Ginsburg-Breyer-Sotomayor-Kagan will say that OHCP is clearly within Congress’ commerce clause powers, and will cite sixty years of cases prior to the trio cited by the Roberts group. They will then explain how the OHCP differs from the trio of cases. That will make it 4-4. Kennedy is the swing vote, the one whose views range from unpredictable to nuanced.

My guess is that the most likely outcome is that Kennedy, as he has often in the past, sides with the Roberts group in voting to limit the use of the commerce clause to justify federal legislation. However, he might just then turn around and write a concurring opinion finding that the general welfare clause (or even the necessary and proper clause) provides enough cover to protect the OHCP’s individual mandate.39 That approach would allow OHCP to stand, while leaving the extent of allowable commerce power in a constitutional muddle.

The Underlying Issue: Congress and the Supreme Court

Before you are persuaded by the wailing of Congress that the darn Supreme Court keeps overturning its best stuff, keep in mind that almost all of the Supreme Court’s powers come not from the Constitution but from Acts of Congress. Most of the power now exercised by the Supreme Court comes from the Judiciary Acts of 1789, 1875, and 1925.40 A 1988 law granted nearly complete discretion to the Supreme Court to refuse or take any case.41

That leaves Congress in the position of a citizen advisory board whose actions can almost always be reviewed and overturned by an institution that is itself almost completely a creature of the Congress. If Congress is somehow forced to do something democratic or helpful to the “rabble,” the Supreme Court is waiting in the wings to correct it.

Is this any way to run a country? To interpret a constitution? The U.S. is the only country that does it this way, and it’s about time we noticed. As supporters of judicial review and a strong judiciary have long known (cf. the Federalist Papers), in such systems, Property bats last, and the U.S. Supreme Court is the perfect ballpark.

Notes

  1. On November 14, 2011, the U.S. Supreme Court (Docket 11-400) decided to review aspects of three of the cases that had worked their way through federal courts. It did not exactly consolidate them, but indicated that two points it would hear argument on were 1) whether requiring the purchase of health insurance (the “individual mandate”) is within Congress’s commerce clause power, and 2) whether the entire law would have to be declared unconstitutional if the individual mandate were found beyond Congressional power (the severability issue).

    Supporters tend to call it the Affordable Care Act, while opponents have tagged it as “ObamaCare.”

  2. A good place to keep up on the already-long history of state stances on OHCP can be found here. A detailed history of state opposition to the Obama Health Care Plan can be found in John Dinan, “Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism,” 74 Alb. L. Rev 1637 (2011). See especially pp. 1659-1664.
  3. ProCon.org, (updated Feb. 25, 2011), “History of the Individual Health Insurance Mandate, 1989-2010: Republican Origins of Democratic Health Care Provision.” The 1989 report, Assuring Affordable Health Care for All Americans, is by Stuart M. Butler. See also Mark Hall, “Commerce Clause Challenges to Health Care Reform,” 159 U. Pa. L. Rev. 1825 (2010-2011).
  4. The U.S. Supreme Court is “the most powerful court the world has ever known” (Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law (St. Paul, Minn.: West Group, 1999), p. 3); Justice Frankfurter said that the Supreme Court was “the world’s most powerful court” (Felix Frankfurter, “Mr. Justice Brandeis and the Constitution,” pp. 47-125 in Felix Frankfurter, ed., Mr. Justice Brandeis (New Haven: Yale Univ. Press, 1932), p. 125); Archibald Cox (Solicitor General under President Kennedy, and Watergate Special Prosecutor) noted that the amount of power exercised by the U.S. Supreme Court is “unique in judicial history,” and that “no other country has given its courts such extraordinary power”(Archibald Cox, The Court and the Constitution (Boston: Houghton Mifflin Co., 1987), pp. 44-5).
  5. Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (New York: Apex Press/Rowman & Littlefield), 2008. Most, but not all, of the discussion of the constitutionality of the individual mandate, and the OHCP, turns on the interpretation of the commerce clause. Attention to other clauses is seen, for example, in the discussion of the “spending clause” (Art. I. Sec. 8. Cl. 1) on p. 6 of the Judge Vinson ruling (plaintiffs’ claim that the health care law forces states to bankrupt themselves by extending Medicaid.) Fla. v. U.S. Dept of Health & Human Services, et al (2011). The “spending clause” is sometimes known as the “taxing and spending” clause and sometimes also the “general welfare” clause, depending on one’s perspective. Yet another issue is severability, mentioned above in note 1.
  6. For a quick tour of some other approaches to health care, see Don Fitz’s “Revolutionary Doctors,” Synthesis/Regeneration Vol. 57 (Winter 2012).
  7. Morris, Gaveling.
  8. For example, one professor of constitutional law ( who obviously supports the OHCP) claims that when the Constitution was written, “the idea of commerce-as-intercourse was broader than economics narrowly conceived-it also included networks of transportation and communication through which people traveled, interacted, and corresponded with each other.” (Jack M. Balkin, “Commerce,” 109 Mich. L. Rev. 1 (2010-2011)). See also Mark Hall, cited above in note 3.
  9. The judiciary gives lip service to the idea that the legislative branch, as the one closest to the people, deserves some deference, if not exactly a presumption of constitutionality. However, I have read enough case law to question this position. See Gaveling.
  10. Art. I. Sec. 8 is what Congress can do (enumerated powers); Sec. 9 is what Congress cannot do; Sec. 10 is what states cannot do. There is no Sec. 11.
  11. The Tenth 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.”
  12. Eric Lane & Michael Oreskes , The Genius of America: How the Constitution Saved Our Country–and Why It Can Again (NY: Bloomsbury, USA), 2007, p. 117.
  13. The title of a book by Max Lerner (NY: Arcade Publishing, 1994). The size of the U.S. Supreme Court has varied from six (1789) to five (1801) to seven (1807) to nine (1837) to ten (1863) to nine (from 1869 to the present). Carl Brent Swisher, “The Supreme Court,” in James Truslow Adams, ed., Dictionary of American History, NY: Charles Scribner’s Sons, 1940, pp. 206-08.
  14. The preamble to the original Social Security Act (1935) begins, “An act to provide for the general welfare by…” The general welfare clause (Art. I Sec. 8. Cl.1.): ” The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”
  15. The National Aeronautics and Space Act of 1958, Sec. 102 (b). “The Congress declares that the general welfare and security of the United States require that adequate provision be made for aeronautical and space activities.”
  16. Morris, Gaveling, Ch. 7: “Fellow Travelers: Labor and the Commerce Clause”; and James Gray Pope, “The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957,” 102 Columbia Law Rev. 1 (2002).
  17. Patient Care and Affordable Care Act (2010), Sec. 1501(a)1-3.
  18. U.S. Constitution, Art. I. Sec. 8. Cl. 3.
  19. Jane Anne Morris, Gaveling, Ch. 6: “Strange Fruit: Civil Rights and the Commerce Clause,” pp. 97ff.
  20. Morris, Gaveling, Ch. 5: “Environment Finds Refuge in Commerce: The Hey-Whatever Clause.”
  21. Jane Anne Morris, Gaveling, p. 83ff; Hoffman Homes Inc. v. US EPA Admin., 961 F. 2d 1310 (7th Cir. 1992).
  22. Morris, Gaveling, p. 85. (Judge Alex Kozinski used the phrase in a 1995 article.)
  23. Morris, Gaveling p. 58. (Phrase used in 1996 by Richard A. Epstein.)
  24. U.S. v. Lopez (1995)—gun-free school zones; Printz v. U.S. (1997) –the Brady Act; U.S. v. Morrison (2000)- the Violence Against Women Act. See Morris, Gaveling, Ch. 8: “Acts of Self-Preservation.”
  25. Morris, Gaveling, p. 64.
  26. Patient Care and Affordable Care Act (2010), Sec. 1501(a)1-3.
  27. Employee Retirement Income Security Act of 1974; the Public Health Service Act (42 U.S.C. 201 et seq.)
  28. United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944).
  29. U.S. Const. I. 8. 18.
  30. Fla. v. U.S. Dept of Health & Human Services, et al (2011).
  31. Einer Elhauge, “The Broccoli Test,” NYT Op-Ed, Nov. 16, 2011. Elhauge also points out the availability of the “necessary and proper” clause.
  32. John Peter Giraudo, “Judicial Review and Comparative Politics: An Explanation for the Extensiveness of American Judicial Review Offered from the Perspective of Comparative Government,” 5 Hastings Constit. Law Quarterly 1137 (1979), p. 1141. Close paraphrase. JAM note: except perhaps an international trade tribunal, such as the WTO.
  33. Ran Hirschl, “Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review v. Democracy in Comparative Perspective,” 34 Univ. of Richmond Law Rev 415 (2000), p. 439.
  34. Rhett Ludwikowski, “Judicial Review in the Socialist Legal System: Current Developments,” 37 International and Comparative Law Quarterly 89 (1988), p. 91.
  35. Hirschl, p. 432.
  36. Hirschl, p. 429.
  37. Gonzalez v. Raich (2005).
  38. Rapanos v. United States (2006).
  39. In a 2010 case (U.S. v. Comstock) involving a federal law about detaining mentally ill persons, Kennedy and Alito both found the law constitutional under the necessary and proper clause.
  40. See Jane Anne Morris, “Look to Congress for Supreme Court Fix,” (2010), democracythemepark.org; and David P. Currie, Federal Jurisdiction, 3rd ed., St. Paul, Minn.: West Publishing Co., 1990, p. 82.
  41. Steven Emanuel, Constitutional Law, 11th ed., Larchmont, NY: Emanuel Law Outlines, Inc., 1993, p. 11.
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