You don’t agree that the text is clear that while Congress may regulate commerce, it is a stretch to say that they can regulate things that affect commerce. Two different things.
I would disagree and say that the reach of the commerce clause is larger because the feds regulate things under the guise of commerce. Does anyone really believe that the feds outlaw chemical weapons, for example, because they wish to have a healthy commerce in these things?
I believe the deal is, you pay taxes, you get the vote. Compulsory insurance seems a clumsy way of funding a national healthcare system, but I guess the idea of a direct tax would be a bit too inflammatory and radical for a sizeable minority in the US. If you’re a net contributor of taxes then you pay for highways (whether you drive or not, non-drivers actually subsidise car owners), nuclear weapons, whale conservation, space exploration, scientific research etc etc, whether you desire to or not. Healthcare is lumped in with all this in most other countries, and it generally works out great for everyone.
So, look upon it as a tax, the collection of which has been farmed out to private enterprise in the form of insurance companies.
First, how do you propose to distinguish between regulating commerce, and regulating things that affect commerce? They are part and parcel, and regulating also includes prohibiting. If you subsidize wheat, it can lower prices, which directly affects commerce. If you ship goods or information across state lines, that’s commerce. If you want to make sure products are safe, then you set requirements that any goods shipped across state lines must meet standards, that affects commerce. All of these are straightforward and time-honored commerce clause laws.
Commerce isn’t just the transaction itself, it’s all of the other stuff too. Some uses are a stretch, like in Raich v Ashcroft, but you seem to have a very narrow idea of what it means to regulate commerce.
First of all, the supreme court, and the weight of decisions are on the side of interpreting congressional lawmaking power as ivn1188 suggests. For example, Wickard v. Filburn - Wikipedia Congress, under current law, clearly does have the power to regulate things that affect interstate commerce (with certain limitations, as already discussed in Lopez)–but the contention that current law doesn’t allow congress to regulate things that affect commerce at all is plainly wrong.
Since this is GQ, I think we should be clear about the difference between the power congressional lawmaking has, not the power some people wish it has.
Beyond that, even if you do accept the (incorrect under modern jurisprudence) premise that the commerce clause itself does not directly allow regulation of things that affect commerce, you have to admit that in order to effectively regulate commerce, at least in some cases, it is necessary to regulate things that affect commerce.
I would also point out that congress’ actual lawmaking power (as opposed to the subjects of that power) is described as follows:
I contend that the necessary and proper clause is a textual source of such power–it gives congress the power to make laws that are necessary to give effect to the powers granted to the federal government.
Let’s again be careful to stay with a GQ answer. The constitution gives congress the power to “regulate” commerce. “Regulate” does not equal “promote a healthy commerce.” For example, a natural reading of “regulate” includes restricting things that (in the eyes of congress) should not be part of interstate commerce.
Further, the commerce clause isn’t the only power congress could use to regulate chemical weapons (which, let’s be honest, is a terrible example of something outside of the power of congress to regulate). These are just what I can come up with in five minutes–I haven’t put much thought into them–but that’s because it seems clear off the bat that there are many potential sources for congressional lawmaking authority to ban chemical weapons.
E.g.
Restricting weapons that could kill millions seems like a necessary and proper law to provide for the common defense and general welfare. If you want to argue that congress has to do so by taxing/spending, that’s fine too–trillion dollar tax per gram of chemical weapons.
Last I heard, international law was pretty clear on the status of chemical weapons. And if use of chemical weapons is against the law of nations, congress can make laws to prohibit their use. (and, for that matter, it seems necessary and proper laws to carry that power into execution by barring private ownership of chemical weapons, if it is legal to absolutely bar their use by private individiuals)
Again, potentially including laws necessary and proper to these ends–such as ensuring only the army can use certain weapons.
Didn’t the army invent many modern chemical weapons? Congress could even argue they are patented–and so illegal for private individuals to own without the army’s consent.
Now, of course, once we have identified congressional lawmaking authority, one has to evaluate a law against any extrinsic bar to that authority. So, in this case, we’d ask if the right to “keep and bear arms” precludes congressional regulation of chemical weapons.
And, from what I understand of the most recent decision on the second amendment (IANAL, but I read cases), even Justice Scalia, (who wrote that decision), agrees that some restrictions are valid under that the Second Amendment --and perhaps the most reasonable restriction on private ownership of arms would be “no weapons of mass destruction.”
Given that the Supreme Court has ruled the federal government has authority via the interstate commerce clause even in certain (but not all areas) where no commerce passes state lines, it’s not a big stretch to think there isn’t much they can’t regulate.
But I agree healthcare falls under the guise of “general welfare.” If the federal government found itself at odds they could simply require healthcare at a state level. At least you need to have it to get certain benefits. For instance, no law says the minimum drinking age HAS to be 21. But states don’t get funding for roads unless they do.
It’s be simple enough to require states have coverage or they won’t get funds for this or that.
Whorfin, the Feds can regulate chemical weapons through the treaty power as well; I believe we have signed several treaties dealing with non-proliferation of WMDs.
Here is fivethirtyeight.com’s take on one aspect of this issue. It also links to a Washington Post article on it. Basically, there are too many people who don’t understand that the Founding Fathers wisely choose not to list everything that anyone would ever imagine as allowed or not in the Constitution. It’s a constitution, not the entire Federal code. Hence, they purposely set it up to be flexible by actually allowing new laws to be created and passed.
Claiming unconstitutional simply due to a specific lack of mention allowing it doesn’t go far. You need a lot more than that. A lot more.
I’ve read this thread, and see that we’ve moved past this point, but I’d say the workhorses are the Commerce Clause (as you note), the Taxing and Spending Clause (which you deprecate here), and the Necessary and Proper Clause (never mentioned in these discussions for reasons I cannot ascertain).
The joint effect of these three clauses is to endow the Congress with considerable law-making abilities. For those who insist we’re betraying the dictates of the Framers, let’s not forget all of these are clauses from the original articles of the Constitution. The Anti-Federalists lost, after all.
Nice catch. Makes the point even clearer.
Yes, the answer was in the first responses. The congress can establish a tax. With that tax, they can offer to pay for whatever they want to - health care for citizens (and illegals too, if they want), for example. Requiring a citizen to apy something is… a tax. The only escape would be arguing the unjust deprivation of property right. However, the government CAN levy taxes, and the only thing unjust about it is if a person could NOT pay, not if they simply wanted to choose no to.
As for interstates, speed limits, etc. - well, this is an example of Piper’s Law - “he who pays the piper calls the tune”. (see also - “Golden Rule”) Montana, for example, ignored the feds’ money and had no speed limits for years. Somehow, the Feds ended up with most of the money, so the Founding Fathers must have planned something right.
As a Canadian, I don’t understand the fuss. We have pretty good health care. Nobody stays in a job or worries about losing their house because they may end up with medical bills. Yes, there’s the occasional horror story - just like with the US system. Occassionally, there’s an outright lie, like the woman from Canada who claimed she had brain cancer on those republican commercials. She was a hypochondriac with a begnign tumor. Michigan has even complained that the Ontario auto workers hav an unfair advantage because there is no need to pay expensive health care premiums in Canada.
So the Obama plan is a valid tax; if you don’t like it, yell at a town hall meeting like every other low-grade imbecile; or have a tea-bagging party. BTW, your government already has medicare, which covers more people that the largest health care plan in Canada, The province of Ontario’s OHIP plan. Yes, you’ll pay higher taxes - but you already are, they’re called “Health Care Premiums”. The people who want you to speak out against the taxation are the private companies that rake a cool percentage off the top of the premiums and don’t want to lose their cash cow.
As I understand it, no one is talking about criminalizing failure to carry insurance. If you do not have it, you will be hit with a tax penalty - you won’t be tossed in the slammer or otherwise forced to acquire it. The right to decide how to apportion taxes is inherent in the tax power, as long as it’s not applied in a manner that violates some later-adopted constitutional amendment (e.g., the government can’t condition tax rates on race).
People are overthinking this. This isn’t some obscure interpretation of the commerce clause or the general welfare or implied powers or states rights. Electric Warrior gave the correct answer: the Constitution explicitly says Congress has the power to collect taxes, duties, imposts, and excises - so yes the federal government can make you buy insurance.
Even now, when we’re back to having numerical[sup]*[/sup] speed limits, they’re still above the Federal guidelines. I presume this means that we’re still turning down the money.
*Strictly speaking, we were never without speed limits, just numerical speed limits. There was still a requirement to go at a “reasonable and prudent speed”. But it turns out that too many citizens have an entirely skewed idea of what speeds are “reasonable and prudent”, so they went back to numbers.
Well, a LOT of Congresscritters are lawyers. Now, if the law was so blatantly unconstitutional that a layperson could see it, they could too.
Mind you, they make mistakes, and the SC does so rule.
Congress passes blatantly unconstitutional laws all the time. The fact that congresscritters are generally lawyers does not confer upon them an understanding of the law. 
Moreover, they’re almost to a man perfectly happy to ignore the legal limits of their powers in order to pass laws that fit in with their personal convictions - or those of their constituents.
Note that the National Minimum Drinking Age Act of 1984, the law under which the Feds can threaten to withhold highway funding if states don’t play ball on the drinking age, was supported and signed into law by Reagan (although introduced by Democrats), even though he liked to witter on about states’ rights more than any other President since about 1968.
Dumb, sure. Imposing on states, sure. But how was it unconstitutional, or beyond the legal limits of congress’ powers? All there is here is pretty straightforward taxing and spending. (also, IIRC, it was only some percentage of highway funding, not all of it).
To me, it’s pretty simple. The federal government doesn’t have to fund highways in states. If states want to be allocated money from the federal government, then (within certain limits), it seems to me (and to the Supreme Court) for it to be just fine for the federal government to put conditions on that funding.
The silly level of anti-government bias aside, there’s a serious underlying assertion here that is dead wrong.
If the Supreme Court divides 5-4 on an issue of constitutionality, as it often does, or overturns a previous Court ruling, as it often does, then the obviousness of a law’s constitutionality is not a cut and dried issue, no matter what some people would like to believe.
Some laws are so blatantly unconstitutional that they are obviously pandering to constituents, true, but those are far more often to be seen on the state level than in Congress. I’d say that extremely few laws passed by Congress are so obviously unconstitutional that the Supreme Court nullifies them by a 9-0 ruling.
Perhaps you’d care to name these since you say they happen “all the time.”
No it doesn’t. People have to wait months for medical procedures that should be done in a more timely manner, but that’s just too bad for them. They have to get in line just like everyone else. Of course they could just go to the US and get the procedure done, but if Obama has his way, that won’t be an option any more.
Unless you’re in the US congress. For some reason they decided not to be part of Obamacare. If its such a great plan for the American people, why doesn’t Pelosei want to have it take care of her health plan?
I’d like a cite for this also. It’s true that some laws have failed a test later on down the line, but “all the time”?
Part of the scandal associated with the Military Commissions Act of 2006 is that some of the members of Congress who voted for apparently were not certain of the act’s constitutionality and justified voting for it by saying that the Supreme Court could correct it if it were unconstitutional. This is a significant deviation from the idea that each department of government has a duty to interpret the Constitution and to abide by it.
However, it was a scandal precisely because it did represent a departure from standard practices. So, while RNATB, is not incorrect when he suggests that Congress has been known to shirk its obligations with respect to refraining from passing “deliberately unconstitutional” (as the law reviews put it) legislation, I think he is off the mark when he says that this is a frequent occurrence.