Challenges to ObamaCare might be opportunity to revisit Commerce Clause

Missouri state Sen. Jane Cunningham, R-Chesterfield, left, gathers with supporters of Missouri's Proposition C to watch election results Tuesday.  Prop C prohibits governments from requiring people to have health insurance or from penalizing them for paying health bills entirely with their own money. (AP Photo/Jeff Roberson)

"The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens."
    —Joseph Story, Commentaries on the Constitution, 1833

Missouri voters just said no.

By an overwhelming majority of 71 percent the voters rejected the federal health care reform bill requirement that people purchase health insurance or face a stiff fine.

"I believe that the general public has been duped about the benefits of the health care proposal," The Associated Press quoted Mike Sampson of Jefferson City as saying. “My guess is federal law will in fact supersede state law, but we need to send a message to the folks in Washington, D.C., that people in the hinterlands are not happy."

The action of a simple majority of 535 delegates cloistered in Foggy Bottom trumps the supermajority vote of the citizens of an entire state? That hardly fits the definition of federalism, but it may currently be the law of the land.

In a case out of California, the U.S. Supreme Court ruled federal drug laws take precedent over the vote of the people to allow citizens to grow marijuana for medicinal purposes.

But Justice Clarence Thomas’ dissent in that case revealed just how silly it is for the court to maintain that the Commerce Clause of the Constitution gives Congress the power to do so. “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers,” he wrote.

Also dissenting in that case was Justice Sandra Day O’Connor, who chose to quote from Madison’s Federalist Paper No. 45. “We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: ‘The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State,’” she wrote.

The Missouri vote and the various lawsuits against ObamaCare might well give the court an opportunity to revisit some overreaching in previous rulings that gave entirely too much power to Congress under the guise of the Commerce Clause.