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Judge Napolitano
Judge Andrew P. Napolitano
4 Feb 2016
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Health Care Reform and the Constitution


Note: The following sample column was published originally in 2009. Judge Napolitano's new column will appear online and in papers every Thursday beginning Oct. 20, 2011.

Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about (you) show me where in the Constitution it prohibits the federal government from doing this?"

Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress' powers only to those granted in the Constitution.

One of those powers — the power "to regulate" interstate commerce — is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.

Unfortunately, a notoriously tendentious New Deal-era Supreme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942), the Supreme Court held that a farmer who grew wheat just for the consumption of his own family violated federal agricultural guidelines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines — indeed, it never left his farm — the Court held that if other similarly situated farmers were permitted to do the same, it might have an aggregate effect on interstate commerce.

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison's understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses.

It would do so by assuring that commerce between the states was kept "regular."

The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.

Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.

That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution — they are evading it.




1 Comments | Post Comment
In 1973 the US Government ended the Military Draft System, and American Patriotism took a Bullet and this Nation has been bleeding out ever since. Patriotism in the United States has been and still is being replaced by Greed, individual Greed, where unity is seen only in Corporations where the Financial Umbrellas exist. Without Patroitism, no Nation can survive....
This bickering and stalling and the misleadings seen in this wierd struggle to establish a decent Health Care System, a challange that certainly has gone on way too long, still without a clear seen and correct Path to Resolve, is a clear showing of the full lack of Unity and Patriotism existing in America.
This Government is not leading, but is daily faultering. Example: Seeking to cut Social Security Medical for the Senior Citizens of this Great Land, and at the same time feeding billions upon billions of US Taxpayer Dollars to Foreign Powers, most of which would enjoy seeing the USA crumble into complete ruin.
These foreign powers laugh at America, every time the US Government ignorantly hands over billions to those foreign Nations. For they do see the ignorance and vunerability America has come to own.
America is in great financial debt. It is time to end the flow of Billions of US TAXPAYER DOLLARS out to these foreign powers. It is time for America to be giving Billions to Americans, not else, and never again. WE have Debt, WE have roads and bridges, etc. to rebuild, repair and maintain. WE have starving children to feed, and also nature's violence to deal with on too many occassions.
WE have ABSOLUTELY NO BUSINESS playing Big Daddy to foreign Powers, paying their bills and fighting their battles. Let them fend for themselves, settle their own difficulties. WE have to. Why not them also?
Also.... What ever happened to "Made in America" ????
Comment: #1
Posted by: senior_diligent
Thu Sep 29, 2011 8:58 AM
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