Michael Gaynor
Obamacare and Chris Matthews versus constitutional limits
By Michael Gaynor
March 26, 2010

Obamacare has Commerce Clause and Tenth Amendment problems and Obama shill Chris Matthews has bias and ignorance problems.

In McCray v. United States, 195 U.S. 27 (1904), the United States Supreme Court upheld a Congressional act imposing a prohibitive tax on oleomargarine, which really amounted to an exercise of a police power to protect the health of the citizenry, under the guise of a constitutional exercise of the power to levy taxes for the "general welfare."

Team Obama's hoping that the Constitution won't be allowed to block the "fundamental change" that is Obamacare.

It would be wrong if some justices claimed that the United States Constitution's Commerce Clause somehow authorizes Obamacare's individual mandate. (But it would not be shocking. After all, majorities of the justices of the United States Supreme Court created a constitutional right to abortion in Roe v. Wade and essentially read the public purpose requirement of the Constitution's Eminent Domain Clause out of the Constitution by interpreting "public purpose" outrageously expansively in Kelo.)

Obamacare has Commerce Clause and Tenth Amendment problems and Obama shill Chris Matthews has bias and ignorance problems.

Matthews recently railed against the use of the word "invade" in connection with legal challenges to the constitutionality of Obamacare, associating it with the Civil War.

It's not a Civil War thing, Chris. It's a Tenth Amendment thing. The usual legalese nouns are invasion and encroachment.

The Commerce Clause is part of Article I of the Constitution and the Tenth Amendment is part of the Bill of Rights. They both thus antedate the Civil War, Chris.

The Tenth Amendment states: "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." Thomas Jefferson described it as "the foundation of the Constitution" and warned, "To take a single step beyond the boundaries thus specifically drawn...is to take possession of a boundless field of power, no longer susceptible of any definition."

Apparently "progressive" House Judiciary Committee Chairman John Conyers knows that Obamacare is in legal jeopardy and has been looking for constitutional support for it.

The Commerce Clause is cited, of course, but a ruling that a personal decision NOT to buy health insurance sufficiently affects interstate commerce so as to authorize a mandate would make a mockery of federalism.

In this regard, Justice Cardozo's concurrence in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

The case syllabus explains: "Defendants were engaged in the business of slaughtering chickens and selling them to retailers. They bought their fowls from commission men in a market where most of the supply was shipped in from other States, transported them to their slaugterhouses, and there held them for slaughter and local sale to retail dealers and butchers, who in turn sold directly to consumers. They were indicted for disobeying the requirements of a 'Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York,' approved by the President under 3 of the National Industrial Recovery Act. The alleged violations were: failure to observe in their place of business provisions fixing minimum wages and maximum hours for employees; permitting customers to select individual chickens from particular coops and half-coops; sale of an unfit chicken; sales without compliance with municipal inspection regulations and to slaughterers and dealers not licensed under such regulations; making false reports, and failure to make reports relating to range of daily prices and volume of sales."

Justice Cardozo:

"If this code had been adopted by Congress itself, and not by the President, on the advice of an industrial association, it would even then be void unless authority to adopt it is included in the grant of power 'to regulate commerce with foreign nations and among the several states.' United States Constitution, Art. I, 8, Clause 3.

"I find no authority in that grant for the regulation of wages and hours of labor in the intrastate transactions that make up the defendants' business. As to this feature of the case, little can be added to the opinion of the court. There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours 'is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.' Per Learned Hand, J., in the court below. The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. What is near and what is distant may at times be uncertain.... There is no penumbra of uncertainty obscuring judgment here. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our federal system."

That's not the kind of change to be made without amending the Constitution.

Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833) wrote that inspection laws and health laws, even when they affected interstate or foreign commerce, were "purely internal" and not subject to congressional regulation."

Chairman Conyers recently commented: "Uh, [ObamaCare is constitutional] under several clauses. The good and welfare clause, uh, and, uh, a couple others."

The elderly chairman surely meant the general welfare clause. (There is no "good and welfare clause.")

The powers of Congress are enumerated in Article I, Section 8 of the United States Constitution, as follows:

"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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

"To borrow money on the credit of the United States;

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

"To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

"To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

"To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

"To establish Post Offices and Post Roads;

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

"To constitute Tribunals inferior to the supreme Court;

"To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

"To provide and maintain a Navy;

"To make Rules for the Government and Regulation of the land and naval Forces;

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

"To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

"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, or in any Department or Officer thereof."

The federal government was not supposed to be all-powerful. The enumeration of powers obviously was intentional and the legal principle of interpretation expressio unius est exclusio alterius (the express mention of one thing excludes all others) was intended to be respected.

The expansion of congressional power under the Commerce Clause has rendered the interpretation of the Taxing and Spending Clause for the General Welfare Clause primarily a matter of historical interest, but the issue of the constitutionality of Obamacare's individual mandate may make it critically important.

James Madison contended that the reference to general welfare was a summary of the specific powers enumerated and not an additional source of power, but Alexander Hamilton opined that the power to tax and spend for the general welfare was additional to Congress's other powers and in United States v. Butler, 297 U.S. 1 (1936), the United States Supreme Court agreed with Hamilton that the Taxing and Spending Clause was a separate power. The Court concluded that the reach of that power was limited to matters of "national, as distinguished from local welfare" and then declared a tax under the Agricultural Adjustment Act of 1933 unconstitutional because the statutory plan to regulate and control agricultural production invaded the reserved powers of the states and so was invalid under the Tenth Amendment. Count of the Obama Justice Department to argue in the alternative that if the Commerce Clause is insufficient, the Taxing and Spending Clause for the General Welfare Clause does the trick.

It was not intended to serve that purpose, of course.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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