Federal Judge Roger Vinson, right — ruling in a Florida-based case joined by 26 states, including Nevada, in opposition to ObamaCare — has provided a thorough, point-by-point lecture to Congress, the president and the American people on the constitutional definition of enumerated powers in general and the Commerce and Necessary and Proper clauses in particular.
Judge Vinson includes a history lesson — quoting at length from the Federalist Papers — on the rationale for founding this nation and the mind set of those who did:
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power,’ and we would have a Constitution in name only.”
For his discussion of the Commerce Clause, the judge pored over key Supreme Court rulings — one from the New Deal era was expansive of congressional power and two were limiting.
The New Deal case held that a farmer who grew wheat for his own consumption affected interstate commerce because if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.
“And, indeed, from the New Deal period through the next five decades,” Judge Vinson wrote, “not a single federal legislative enactment was struck down as exceeding Congress’ power under the Commerce Clause power — until Lopez in 1995.”
The Lopez case effectively struck down the Gun Free School Zones Act of 1990. The government futilely argued that the law providing possession of guns near schools affected interstate commerce because “gun-related violence is a serious national problem with substantial costs that are spread throughout the population; (2) such violence has adverse effects on classroom learning (which can result in decreased productivity) and discourages traveling into areas felt to be unsafe …”
Then in the Morrison case the court declared unconstitutional the Violence Against Women Act of 1994. The court did not buy the argument “that Congress could regulate gender-motivated violence based on a syllogistic theory that victims of such violence are deterred from traveling and engaging in interstate business or employment; they are thus less productive (and incur increased medical and other costs); all of which, in turn, substantially affects interstate commerce,” the judge paraphrased.
Judge Vinson’s extrapolation of what could result if Congress were allowed to force citizens buy things was almost comical, if it were not so logical.
Referring to that wheat ruling in the New Deal era, Judge Vinson wrote, “Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market.”
Then he followed with a contemporaneous example, “Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.”
He also noted that Congress could mandate people buy homes in order to stabilize the housing and financial markets. Why not?
After eviscerating the Commerce Clause argument he dismissed the Necessary and Proper Clause argument by quoting from the Alexander Hamilton and citing the language of the clause itself.
That clause state congress has the power to: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
Hamilton had said in answer to critics such as the Old Whig that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.”
The judge later addresses the ipso facto argument for ObamaCare would have serious negative consequences if people could decline to purchase health insurance until they become sick, which would cause premiums and costs for everyone to increase and thus bankrupt the insurance industry, unless a mandate to purchase is imposed.
“Such an application of the Necessary and Proper Clause,” Judge Vinson reasoned, “would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or ‘necessary’ the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.”