The day after the House approved the health care bill, a reporter asked White House spokesman Robert Gibbs about lawsuits that some states were threatening to bring against the bill on the grounds that a provision forcing all Americans to buy health insurance was unconstitutional.
“I think there’s quite a long precedent for the constitutionality of this,” Gibbs said, without providing any substantive explanation.
Later in the briefing, another reporter pressed Gibbs on the issue. “You say there is settled law, established precedent,” the reporter said. “On what? What is this? What is the established precedent?”
“On the regulation of interstate commerce,” Gibbs said.
The reporter then asked how the mandate in question fits into interstate commerce. “Well, here I go again… Look, I’m not a lawyer, right,” Gibbs said.
“Neither do I,” the reporter said.
“Right,” Gibbs said, “so we’re both in a pool that you can’t see or touch the bottom of.”
Gibbs, of course, has every right to profess ignorance of the Constitution. Who knows, maybe he was telling the truth in this case. But he has no right to denigrate the ability of other Americans to understand the Constitution, and it is foolish of him to suggest that only lawyers can do so.
George Washington, who presided over the Constitutional Convention, was not a lawyer. He was a farmer and a soldier. Ben Franklin, a delegate to the Constitutional Convention, was not a lawyer. He was a printer and writer. Most Americans who fought and died to preserve our way of life were not lawyers. Did these patriots not understand the Constitution?
What part of the statement “private property shall not be used for public use without just compensation” is understood by a law degree?
Surely a teacher, a doctor, a mechanic, a network news anchor, and perhaps even a member of Congress will understand the words of the 10th Amendment as well as any lawyer. It says: “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.”
If the Constitution has not given the federal government the power to compel Americans to purchase health insurance, then Congress and the president have no such authority. Period.
The Commerce Clause, which Robert Gibbs says President Obama will exploit to argue that the federal government actually has this power, is no more complex to understand than the words protecting our private property. It says, “Congress shall have power… to regulate commerce with foreign nations, among the several states, and with the Indian tribes.”
If you live in California and enter into a transaction with someone in Mexico, you are engaging in “foreign trade” and the federal government can regulate that transaction. He can’t force you to buy breakfast at a restaurant on Tuesdays. However, if a restaurant you freely patronize purchases grapefruits in Mexico, it may regulate that grapefruit transaction.
Similarly, if you live in Ohio and conduct a transaction with someone in Florida, you are engaging in “interstate” commerce. The federal government can’t force you to buy oranges once a week, but if a grocery store where you shop freely buys oranges from a farmer in Florida, it can regulate that orange transaction.
Finally, if you trade “with Indian tribes,” the federal government can regulate that as well.
For years, liberals seeking to enhance government control over our lives have tried to expand the meaning of trade “among the several states” far beyond what they understood by the Framers. The most far-reaching interpretation came in the 1942 case of Wickard v. Filburn. In that case, the Supreme Court ruled that the federal government could exploit its power to regulate commerce “among the several states” to regulate the amount of wheat that an Ohio farmer grew on his land, even though he never sold or traded that wheat, and he only used it for his own needs on his own property.
Coming up with this idea required the involvement of an entire team of lawyers. But these lawyers – serving as Supreme Court justices – weren’t trying to understand the Constitution, they were trying to change it without going through the amendment process provided for in the Constitution itself.
According to the Congressional Budget Office, until President Obama signed this health care law, the federal government had never previously ordered Americans to purchase any goods or services. The reason was plain: no president or Congress had ever dared to exceed their constitutional powers in this way.
In November, I asked Senator Orrin Hatch, the senior Republican on the Senate Judiciary Committee, about the constitutionality of the health care law’s individual mandate. “If this is deemed constitutional — if they can tell us we have to buy health insurance — then there is literally nothing the federal government can’t force us to do,” he said. “Nothing.”
Hatching is not intended for hyperbole. He spoke the truth. Forcing Americans to buy a product they don’t want is an act of tyranny that goes beyond the constitutional authority of the president and Congress. This should be repealed.
