Commerce Clause

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Health Care Decision Hinges on A Crucial Clause

By Nina Totenberg, NPR News and Kaiser Health News

Protestor at Supreme Court in March during oral arguments on the Affordable Care Act. (Getty Images: Mark Wilson)

Protestor at Supreme Court in March during oral arguments on the Affordable Care Act. (Getty Images: Mark Wilson)

All of Washington is breathlessly awaiting the Supreme Court’s imminent decision on the Obama health care overhaul. Rumors circulate almost daily that the decision is ready for release. As usual, those rumors are perpetrated by people who know nothing, but the decision is expected by the end of this month.

The near hysteria is partially about politics: Congressional Republicans hate the bill, and some see President Obama’s chance at a second term hinged to the fate of the law. But constitutional scholars know there is much more at stake here than an individual election. Just how much is illustrated by the legal history of the Commerce Clause of the Constitution.

The ACA presents a watershed, a potential breaking point with the legal framework that has undergirded our modern economy.

It gives Congress the power to “regulate commerce … among the several States,” and it authorizes Congress to “make all laws which shall be necessary and proper” for achieving that goal. The Founding Fathers’ purpose was to put an end to the interstate rivalries that balkanized the country after the American Revolution. But the words of the Commerce Clause are pretty general, and it is the Supreme Court that for more than 200 years has interpreted what they mean.

Early Decision: Broad Power

The court’s first major Commerce Clause decision came in the 1824. The great Chief Justice John Marshall, who was himself one of the Founding Fathers, wrote in Gibbons v. Ogden that the Commerce Clause gives Congress broad power to regulate commerce and that this power is mainly limited by the power of the people to deny their representatives re-election if they don’t like what Congress does. Continue reading