The Obama Administration reportedly plans on tweaking the case for ObamaCare’s constitutionality it’ll bring before the Supreme Court, shifting its emphasis from the Commerce Clause, which empowers Congress to “regulate commerce…among the several states,” to the Necessary and Proper Clause, which empowers Congress to “make all laws which shall be necessary and proper for carrying into execution” the federal government’s constitutionally-authorized powers:
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
You don’t need to have spent so much as a day in law school to understand that this does nothing to improve the White House’s argument. The Necessary & Proper Clause only helps if the objective is identified by the Constitution, and they’re still relying on the commerce rationalization. Unfortunately for the Left, if we’re going by what the Constitution actually means rather than what they want it to mean, we already know that’s a dead end. Alexander Hamilton explained the Commerce Clause in Federalist 22:
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. “The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
In other words, the intended purpose of Congress’s power to regulate interstate commerce was specifically to prevent the states from discriminating against one another through over-regulation, to erect a uniform standard that would keep the interstate flow of commerce mostly un-regulated. Further, Hamilton’s clearly talking about regulating the actions of state governments, not of individuals. Nothing in the Constitution comes even close to empowering the federal government to compel individuals to purchase a good or service. (For more on the Founders’ understanding of the Commerce Clause, see here.)
The most important thing to understand about this story is that this is not a difficult conclusion to draw. If you have a proper understanding of the purpose behind a written Constitution and how to interpret it, then the rest of the exercise mostly takes care of itself. One need not engage in much heavy theorizing or interpretation thanks to the simple fact that, in most cases, those who wrote the Constitution told us exactly what they meant.
In particular, Barack Obama has no excuse not to know better, considering that the man taught constitutional law. But as Ben Shapiro has been chronicling, Obama’s teaching was defined by an agenda to mislead his students about the law, making originalism subservient to his personal ideology. As president, Obama explicitly chose Supreme Court Justices based on criteria other than their judicial excellence, and his administration has been defined by chronic disregard for any limits on federal and executive power.
Simply put, Barack Obama has no respect for the oath he took to “preserve, protect and defend the Constitution,” and he’s getting away with it in large part because our society doesn’t teach its citizens sufficient constitutional literacy to recognize it. I’ve said it before, and I’ll say it again: conservatives can’t restore America’s founding principles if we don’t wake up and work to break the Left’s stranglehold on education.
Conservative Standards 