Monday, August 2, 2010

Hooray for Henry!

I remember back in the eighties when Henry Hudson was the US Attorney for the Eastern District of Virginia. I admired him back then, and found more reason to admire him today.

His decision to allow the Commonwealth of Virginia’s lawsuit against the Obama Administration’s new healthcare reform law to proceed is just a small initial step by all accounts, including his own. But while taking pains to not pronounce on the merits of the case itself and simply stating that it raises enough legitimate questions to proceed, Mr. Hudson made a key statement which I believe lies at the crux of not only this case, but many others where the federal government has ventured into areas of questionable constitutional authority.

The congressional enactment under review -- the Minimum Essential Coverage Provision -- literally forges new ground and extends (the U.S. Constitution's) Commerce Clause powers beyond its current high watermark.
I will forgive Hudson’s commonly inappropriate use of the word “literally” (I don’t think the healthcare reform law comes anywhere close to forging any kind of ground in the literal sense, unless of course it contains provisions for additional “shovel ready projects”.). But I do appreciate his metaphor referring to the “high watermark” of the Commerce Clause, the historic abuse of which has drowned individual and economic freedom and threatens to send the rest of us downstream if the waters get any higher.

I wrote about the Commerce Clause last October in a post entitled The Unconstitutional Congress. Article I Section 8 lists what are supposed to be explicit and limited powers of Congress, which include the power :
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
The reason the founders inserted the commerce clause in Article I, Section 8 was to ensure uniformity and to keep state governments from interfering with interstate commerce. Yet Congress has used this as a loophole to regulate any and all economic activity that may or may not cross state lines. This nonsense started primarily during and in the aftermath of the Great Depression, when Franklin Roosevelt used an economic crisis as an excuse to introduce unprecedented government regulation, which had the effect of turning an annoying recession into a deep depression (Does all of this sound frighteningly familiar?) After losing a few constitutional challenges in the Supreme Court, Roosevelt bullied the court into submission by threatening to pack it with additional justices to his own liking.

The most infamous Supreme Court decision which opened the floodgates to the abuses of the interstate commerce clause was Wickard v. Filburn (1942). When a chicken farmer named Roscoe Filburn, had the audacity to grow more wheat than was allowed by federally imposed limits, he was ordered to pay a fine and destroy the excess amount of his wheat crop. Mr. Filburn took the government to court by claiming, quite sensibly, that the law was unconstitutional because he was using all of his wheat to feed his own chickens and was not selling any of it, and it certainly was not crossing state lines. Therefore the law went beyond the powers stated or implied by the interstate commerce clause.

I will let Wikipedia concisely summarize the bizarre logic used by the Supreme Court in their decision in favor of the government:
The Supreme Court, interpreting the United States Constitution's Commerce Clause (which permits the United States Congress to "regulate Commerce . . . among the several States") decided that, because Filburn's wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn's production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.
It will take some equally twisted logic for the SCOTUS to affirm the federal government’s authority to force people to buy health insurance, in clear violatoin of individual and state rights. Unfortunately, I would not put it past them. We shall see. In the meantime, hooray for Henry Hudson for having the sense to realize that the new healthcare reform law may well be taking an already loony interpretation of the commerce clause to an even higher level of absurdity.


Shirley Vandever said...

I have a friend in Virginia who has alot of praise for Hudson.

I also think that the vote in Missouri today, while probably more of an expression of sentiment rather than legally binding, was very telling. 71 percent ! Isn't Washington getting the message ?

The Maryland Crustacean said...

Hooray for the "show me" state. It wasn't even close! Yes, it is an unbinding expression of public sentiment, but what a powerful message! Though the quote is probably way over-used by now, "I can see November from my house!"

Ken Shepherd said...

I remember reading about Wickard in a government class in college and thinking it was the most twisted, asinine reading of the commerce clause plausible and a veritable travesty of justice.

It still is, but the legal reasoning that would justify the individual mandate for health insurance purchases is equally beyond the bounds of any legitimate reading of the Constitution as a charter of strictly defined enumerated powers of the federal government.

JD Curtis said...

You're Damn Skippy it "forges new ground."

What other time did the goverment require that we (citizens) purchase our own insurance? Of any type?

May this legislation go the way of the Dodo por favor.

The Maryland Crustacean said...

Of course it "forges new ground", J.D. We are on the same page. I was just being a purist and criticizing the by now commonly accepted misuse of the term "literally".

Anonymous said...
This comment has been removed by a blog administrator.