Pelosi’s Misleading Statement on the Constitutionality of Government Health Care
17. Sep, 2009 
43 Comments
by Rob Natelson
Speaker Nancy Pelosi has issued a press release in which she purports to rebut those of us who have expressed doubts about the constitutionality of some health care reform plans.
Pelosi (or her ghostwriter) claims:
“The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states… or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited. (bolded in original).
For several reasons, this is a highly misleading statement.
First, it fails to mention a concern expressed by many constitutional scholars, including those on the Left: Substantive due process.
“Substantive due process” is the doctrine by which the Supreme Court strikes down laws it deems unacceptably interfere with personal privacy or autonomy. Health care laws that, for example, limit one’s ability to fund and control one’s own health care could well run afoul of substantive due process rules.
Second, the statement fails to mention that, while the Supreme Court has upheld many delegations of power from Congress to executive branch agencies, the Court has affirmed repeatedly that there are limits. Some health care proposals involve wider delegations of authority than any since the New Deal’s National Reconstruction Adminisration (NRA) — which was invalidated by a unanimous Court.
Third, the Pelosi release disregards the fact that on several occasions the modern Supreme Court has struck down overreaching federal legislation, supposedly adopted under the Commerce Power. Also, on several occasions, the Court has interpreted congressional acts narrowly to avoid constitutional conflicts.
Fourth: Pelosi (or her speechwriter) clearly misstate the current Supreme Court’s test for laws under the Constitution’s Commerce Power. The statement that Congress can regulate “activities that have an effect on interstate commerce” should be that Congress can regulate “economic activities that have a substantial effect on interstate commerce.” Non-economic activities, such as some health care decisions, would have to meet a much stricter test. This may seem to be a minor mistake, but for legal purposes it is an important one, and one that, for the Speaker of the House of Representatives, is not easily excusable.
Finally, Pelosi (or her ghostwriter) commits the mistake of failing to look at wider judicial trends. One of these trends is the long-term movement by the Supreme Court toward interpreting the Constitution according to its real meaning – the original understanding of the Founders and Ratifiers.
And virtually no knowledgeable person thinks government health care is constitutional under that standard.
Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.
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By Pelosi’s reasoning, having children could be regulated as interstate commerce because its effect is to increase the number of customers for goods produced in other states.
Larry, that’s pretty much the reasoning they’re using. Anything that could maybe affect commerce in some way – why people keep letting them get away with it, I don’t know…
Pelosi (or her writer) vs Professor Natelson- I love it.
When Pelosi or any of the other DC types meet with the intellectual artillery wielded by our good Professor, one word comes to mind- OUTGUNNED!
Thanks Professor, for another excellent direct rebuttal. Dedicated scholars like yourself, have and continue to provide this movement with the arsenal required to succeed.
I think she should change her name to nazi pelosi. Lets face it every time she is opposed to something she calls them nazis lol.
By Pelosi’s definition we would have no Constitutional limits on government at all, and thus no Constitution at all, as all things “could effect” interstate commerce.
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
The true meaning of “interstate” commerce is much the same as the true meaning of international trade (commerce with foreign nations); it must actually be in active act of crossing a border for economic reasons for you to tax or regulate it.
There is a reason they were listed together in declaring congresses power to regulate, they are the same power. Sense the Untied States is not regulating health-care, education, guns, or production in Europe or China, nor anywhere else aboard, it cannot with honesty and justice do so here.
The “Commerce clause” is by no means a grant of intrastate powers, it is the same power that enables congress to establish tariffs and ban trade with foreign nations all together.
Only a mad dictatorial (power grabbing) fool would clam such to the exclusion of all the rest of the Constitution to say nothing of the 9th and 10th amendments which caringly supersede such an interpretation.
Great points here everyone. Essential to the understanding of everything in the Constitution is that each clause was really a limitation on power. Even those that were granting more power to the feds than under the articles of confederation were defining limits.
Commerce clause, general Welfare, and the rest all had boundaries that defined the limits of what the federal government could do in those areas.
The research that Prof. Natelson has done on the original understanding of the most controversial clauses of the Constitution is an amazing resource. I’m thankful that he continually takes time out of his busy schedule to provide analysis such as this article here.
Thanks again Rob!
I, too, am thankful for Natelson’s efforts.
This movement is growing – not to destroy the Union, but to save it. The only way to save the Union is to make sure its members are happy. The states don’t need Washington, D.C. exercising powers of them in order to be happy.
In fact, it is the other way around. The states need to exercise their authority by themselves in order to happy, and Washington, D.C. needs to leave them alone.
Please, please the 2010 elections can not get here soon enough. These morons are destroying this country. Socialism is not what made this country what is. If Americans want an entitlement society and then take a back seat to the rest of the world then they should get on the Obama-Nation train and ride. The other train ride going the opposite direction is to allow capitalism to flourish just like the last 150 years. With all of these 37 czars running around making socialist decisions for the country now it seems this train ride is going to get “interesting”.
First, Pelosi evidently forgot to compare her constitutional cheat sheet with the cheat sheets of a senator and congresswoman (other Democrats) who have already indicated that the Constitution is silent about public healthcare.
http://cnsnews.com/news/article/53580
http://www.freedomslighthouse.com/2009/08/democrat-congresswoman-justifies-obama.html
In fact, Pelosi unthinkingly disagrees with Jefferson on the scope of Congress’s powers.
“I consider the foundation of the Constitution as laid on this ground: That ” all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” –Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of a National Bank : 1791
The only constitutional option that Pelosi has if she wants Congress to be able to regulate and lay taxes for healthcare is the following. Article V mandates that she rallies Congress to rally the states to exercise their power to amend the Constitution to authorize the federal government to regulate healthcare. In the meanwhile, misguided Pelosi is not only wrongly ignoring that the 10th A. automatically makes healthcare a state power issue, she is unthinkingly trying to bypass Article V to politically expand Congress’s powers at the expense of state sovereignty.
Finally, while not addressing healthcare per se, Jefferson had noted the following while discussing the Founders division of federal and state government powers. He mentioned that the Founders had trusted the states, not the Oval Office and Congress, with the care of the people.
“Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; to each State, severally, the care of our persons, our property, our reputation and religious freedom.” –Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262 http://tinyurl.com/onx4j
On Saturday, January 26, 1788, James Madison, in an attempt to “sell” the proposed Constitution to the people of New York and to allay their fears that the federal government would have too much power, wrote in Federalist #45:
“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 former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. 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.”
Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited. (bolded in original).
Ha, ha.
Ms. Pelosi, with all (un)due respect,
Anytime anyone or any entity tells me that they have unlimited (regulation) power over me or my decisions, well now, we have a BIG problem, don’t we.
The Congress has an “unlimited power” over me? I challenge you and your cohorts to assert this power. And the quicker the better.
P.S. I know a lot of people.
What is worrysome is that Clarence Thomas basically agrees with Pelosi regarding unlimited regulation of interstate commerce
Nancy: You lie!
Nazi Pelosi is a disgrace!!!
The States would never have ratified the Constitution if they knew what would become of it. Nancy Pelosi illustrates for us exactly the kind of thing they and the other founders were most afraid of.
Nancy and the other the Federal government usurpers republican, democrat, and black robes should be ashamed of themselves, for lying to the states and selling us a falsely advertised product.
We should demand they either fix the product to meet the promised specifications or a refund, so that we can buy/create our own product that actually does meet the promised specifications.
That is of course assuming the Federal Government is legitimately operating under the U.S. Constitution with as Nancy describes it.
That’s my basic bone anyway, if they think this is constitution fine, give us a refund on the account of the fraudulent advertisements you made in selling us this Constitution. (Given federalist papers). Otherwise STICK TO THE CONSTITUTIONAL limitations as sold!
We did not sign a contact that gives the Federal Government such powers, and if we did as she clams clearly thou fraud, mistake, or fear, it should be and must be renounced, in the natural justice of the world.
Please refute my points below, if you can…
Most of the arguments raised by this professor are not necessarily frivolous, but they would likely be rejected by a court. Nancy Pelosi’s statement is much, much closer to an accurate description of the current state of the law than the strained arguments this professor is advancing. To call her statement “highly misleading” is simply ridiculous.
1) Congress almost certainly has authority under recent Supreme Court precedent to regulate all (or nearly all) aspects of our health care system. The Supreme Court’s most recent commerce clause case is Gonzales v. Raich, 545 U.S. 1 (2005), where the court upheld the power of Congress to ban the growth of medical marijuana in small quantities for personal use, even when the marijuana in question never crosses state lines prior to its consumption (http://www.law.cornell.edu/supct/html/03-1454.ZS.html). In short, even if economic activity does not cross state lines, if on the aggregate it could rationally be found to have a substantial effect on interstate commerce, it can be regulated by the federal government. It’s true that Pelosi slightly misstates the formal test for the commerce power, but this doesn’t invalidate her general claim about the constitutionality of health care reform. It’s also true that in recent years the Court has cut back somewhat on Congress’s power under the commerce clause, but these cases involved the regulation of gun possession on school grounds and violence against women, which aren’t as clearly “economic” as the markets for marijuana and health care. While there’s no doubt that there is some uncertainty about which activities may currently be regulated under the commerce clause, Raich and other cases strongly suggest that the Court would view most health care regulation as falling within Congress’s powers. Finally, Justice Thomas has suggested that we should scrap nearly all existing doctrine on the commerce clause, but his position hasn’t been adopted by the rest of the court (notably, Scalia concurred with the result in Raich).
2) Congress hasn’t held a law to be unconstitutional as an overbroad delegation of authority to the executive branch since 1935. The most recent Supreme Court case addressing delegation is Whitman v. American Trucking Ass’n, 531 U.S. 457 (2001), where the Court unanimously upheld Congress’s delegation to the EPA of authority to set air quality standards “the attainment and maintenance of which … are requisite to protect the public health” with “an adequate margin of safety” (http://www.law.cornell.edu/supct/html/99-1257.ZS.html). To claim that the health care bill would be an unconstitutional delegation of authority is almost an entirely frivolous argument, even if it’s hard to be absolutely sure of this since it’s unclear which parts of the health care bill(s) this professor is referring to. But it would appear to be well within Congress’s authority under Whitman to direct the executive branch to determine which health care treatments should be reimbursed under Medicare, Medicaid, or the “public option,” for example.
3) It’s harder to assess this professor’s claims about substantive due process, because the doctrine isn’t clearly developed in all areas and this is somewhat of a novel issue. To provide some background, substantive due process is the constitutional doctrine that has been used to create the rights to contraception and abortion. There are clearly limits to substantive due process — for example, the Court has held that there is no substantive due process right to assisted suicide (see Washington v. Glucksberg, 521 U.S. 702 (1997)). I think there could arguably be a substantive due process right to be able to receive a particular health care treatment if one has the means to pay for it, but if this were true, it would call into question a lot of federal regulation that is uncontroversial (i.e. FDA approval of drugs, banning medical marijuana). More importantly, even assuming that this right existed, no version of the health care bill I know of would block anyone from paying for a particular health care treatment if they were able to. While the health care bills certainly seek to impose controls on unnecessary and expensive treatments, it wouldn’t ban people from paying for them if they had the means to pay for it out of pocket.
4) Finally, the claim that Congress could not regulate health care under the “original understanding” of the Constitution is highly debatable. The first primary case discussing the commerce power, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) is viewed as suggesting that the power to regulate commerce is quite broad, although the proper interpretation of this case is debatable as well. Nevertheless, this is perhaps where the professor is on the strongest ground (largely because his other claims are so weak). Still, it’s far from widely accepted that the Constitution should be interpreted solely based on its original understanding. As such, it seems unusual to criticize Speaker Pelosi on this basis, especially when her statement about the scope of the commerce power is strongly supported by recent Supreme Court precedent.
All this said, people can have reasonable disagreements about the interpretation of the Constitution, and people can reasonably argue that the Constitution should be interpreted radically differently than it is under established precedent. This professor’s ideas about the proper interpretation of the Constitution are not inherently unreasonable. But it’s incredible that he calls Pelosi’s statements “highly misleading” when his arguments actually have much less support than her relatively uncontroversial claim about the current interpretation of the extent of the commerce power.
Jim, there’s so many errors in reasoning in your comment that it’s difficult to know where to start. But, you do an excellent job of giving yourself an aura of authority – primarily by citing court cases.
I’ll leave your complete lack of misunderstanding of, for example, what constitutes “original understanding” of the Constitution – which is emphasized by your reference to the Gibbons case – and other errors to Professor Natelson if he decides to respond.
My questions to you are more practical. First, do you believe that the court was correct in Gonzales v Raich? Second, do you believe that all court rulings are correct, or just ones that fit your political goals? And Third, if yes is the answer to the first – are you in favor of locking up millions of people in places like California and the other 13 states that have passed medical marijuana laws that fly in the face of that 2005 ruling?
I guess that would be kind of thuggish of you, but figured I should find out what your goals in arguing this direction are. Because to me, they appear either seriously misinformed, or intentionally misleading.
Just a few quick responses to “Jim’s” post:
1. Pelosi did not misstate the correct commerce power test only “slightly.” Her version was considered, and explicitly rejected, by the majority in Lopez. Raich expansively applied the Lopez test, but did not repudiate it.
2. That the Court might uphold government health care does not render constitutional doubts about it a “myth” (in her words). The Court has, after all, reversed itself before. As far as the Court is concerned, much depends on the particular aspect of health care under consideration and whether the majority characterizes it as “economic” or “non-economic” or its influence on commerce as “substantial” or “insubstantial.”
3. Abortions, like other health services, are almost all economic transactions. That has not prevented the Court from treating them very differently from other economic transactions for Substantive Due Process purposes. If a person has a privacy right against the government in matters of pregnancy, then a person has even more of one in questions of permanent personal health. This is particularly an issue in proposals where government agencies would allocate or ration health care or, in the case of global budgeting, limit personal expenses on health care.
4.Health care delegation from Congress to executive agencies is potentially much more considerable than that the court upheld in Whitman.
5. As for the statement that “the claim that Congress could not regulate health care under the “original understanding” of the Constitution is highly debatable” – Well, no it’s not. There is now a considerable amount of scholarship on the original scope of federal powers, including my own (see http://www.umt.edu/law/faculty/natelson.htm), and most of the results are about as clear as historical inquiry can be.
6. Gibson v. Odgen has been tortured since the New Deal into something it wasn’t, and the claim that it was broad enough to accommodate a government health care system is particularly absurd. There is no need to elaborate on that subject here, because the Constitution and Bill of Rights were drafted and ratified during 1787-91, and Gibbons was not decided until more than three decades later. While I am aware that constitutional commentators occasionally try to infer original understanding from materials issued much later, it is not good historical practice to do so.
7. Finally, I am not one of those who believes the Supreme Court has the final word on constitutional questions. As the Founders pointed out, the ultimate viability of the Constitution depends on the people. And when the Court abandons the document’s limitations on federal power, then (as the Founders themselves suggested) state and popular response is both appropriate and necessary.
I don’t see how we let Jim get off siting the rulings of a corrupt and increasingly illegitimate federal court granting what is basically an unlimited grant of powers to the same federal government as at all an argument for anything except the corruption of our constitutional system over the last 200 years.
Revolution is Coming to America!!
Instead of the president & Pelosi uniting Americans, they are dis-uniting & health care is just the beginning of more dividing issues that will confront all of us.
There’s a great book (underground) out & it tells about what’s nxt. It’s citizenship to illegal aliens, ignoring the Constitution (10th Amendment) & about a small town in Amerian that stands up to federal tyranny & starts the 2nd American Revolution.
It’s about your town & tells what’s going to happen next. It’s time we step away from the TV & step into the streets & “make our own history & leave a legacy for our grandchildren”. Read it!! I bought 2 for my friends so they can see what all of us need to do.
(www.booksbyoliver.com)
Speaker Pelosi..has a bad habit of makeing misleading and down right wrong statements.But she has a fool proof way of getting out of the arguement over them.She just denies ever makeing them to begin with.And with the liberal media we have now they will stand by her until the last lie is told.
Professor Natelson:
1) Pelosi misspoke—she is not a lawyer. Her misstatement doesn’t change the fact that, on the whole, there is little doubt that health care reform would be constitutional.
2) I agree that the constitutionality of health care reform would largely turn on whether the Court characterizes health care provision as being economic or noneconomic. I just think it’s inconceivable that, based on the court’s prior precedents, it would find that health care is noneconomic. Roughly 15% of the GDP of the United States is devoted to health care. The Court’s previous holdings already suggest that the provision of services is economic in nature (see, e.g., Katzenbach v. McClung). This is simply not a close question. Perhaps if Justice Thomas were the only member of the Supreme Court, this would not be the case, but there are eight other justices.
3) I agree that even if Congress may permissibly regulate something under the commerce clause, if that regulation infringes some right protected by substantive due process, then it is invalid and cannot be enforced. I also agree that it is a difficult question whether private individuals have due process rights to control certain decisions about their health care—there may well be such rights under the Constitution, even if cases like Glucksberg suggest that they are not without limit. However, I restate what I said earlier: Even assuming these rights exist, health care reform would not infringe on them. The proposed health care bills do not ban the private provision of health care. If you can pay for it, then you can be treated. If you can point to a provision in any of the reform bills that would ban private purchase of certain treatments, then you may have a point. “Rationing” of health care within a government plan would not infringe any right under the Constitution, because there is clearly no substantive due process right to have government-provided health care. Additionally, even if private health plans were effectively prevented from providing certain services due to budgeting rules, this also would not be a concern, because the impact of this would be that if you sought care that was not covered by your health plan, you would just have to pay for it out-of-pocket. As a final note, if you were to adopt what most conservatives argue is the “original understanding” of the Constitution, then most (if not all) substantive due process rights would likely disappear.
4) If you can point to a particular part of the health care reform bills that would delegate excessive power to the executive branch, please let me know. What you may not know about Whitman is some of the background behind the case. Conservatives had been trying for years before Whitman to resuscitate the non-delegation doctrine, and opted to challenge a particularly vague directive in the Clean Air Act to achieve this goal. The Clean Air Act, and other environmental statutes, are well known for giving extensive power to the executive branch to set various health and safety standards with little direction from Congress. As you saw, however, the Court unanimously upheld the provision of the CAA in question as providing an intelligible principle guiding executive action. I think it’s reasonable for you to disagree with the outcome in Whitman, but it’s really, really hard after Whitman to suggest that the health care reform bills would unconstitutionally delegate excessive power to the executive branch.
5) You can cite to your historical analyses, and I can cite to others arguing for a broad historical scope of the commerce power. For example, many have argued that in the late 18th Century, the word “commerce” had a fairly broad meaning, although there are others that reasonably disagree with this. These historical analyses will rarely be conclusive, especially since our society has changed so much since our country was established.
6) Fair enough, Gibbons was decided thirty years after the Constitution was ratified. And I agree that the case isn’t dispositive on the question we’re debating, even if it can be read to create a broad commerce power.
7) I agree that reasonable people can disagree about the Court’s interpretation of the Constitution, and that we should work through the political process to appoint judges who will adopt a different interpretation of the Constitution when we disagree with the Court’s decisions. However, due to the supremacy clause, I can’t agree that state “nullification” is legal, as you may be suggesting.
Jim:
Unfortunately, I can only spend so much time on the web without interfering with my real job. So I can add just four quick things at this point:
1. In your initial post, you mischaracterize Justice Thomas: “Justice Thomas has suggested that we should scrap nearly all existing doctrine on the commerce clause” What he actually said (in Lopez) was “In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”
2. The ideosyncratic claim, once advanced by the late Professor Crosskey, that “commerce” included “all gainful activity” has received little acceptance, and is now thoroughly discredited. As one who spent months examining hundreds of contemporary references to the word in 18th century law, I can testify personally that there is nothing to Crosskey’s claim. For my results and further citations, see “The Legal Meaning of ‘Commerce’ In the Commerce Clause” in PDF form on my webpage.
3. If all you are saying is that five justices on the current Supreme Court might well vote to uphold some or all of some government health care bills, I agree. But there also are significant doubts and reservations, and in any event court personnel is likely to have changed significantly by the time, if ever, a government takeover of health care lands before the Court (probably well after the 2012 elections). Pelosi, on the other hand, was trying to communicate that the doubts and reservations were mere “myths.” She may not be a lawyer but she has lawyers at her disposal, so issuing the press release as written was simply irresponsible.
4. What the current Supreme Court is likely to do is interesting, and I’ve been willing to engage with you on the subject. But it is not the most important fact, which is that the Constitution really means what it meant originally, and a growing number of Americans agree. They expect our elected officials to honor the Constitution as ratified (with amendments), whatever fictions the Supreme Court comes up with.
And the Court is certainly able to generate fictions. Remember that most of the justices in the Gonzales v. Raich majority had previously announced that they don’t believe enforcing Commerce Power limitations on Congress at all (they want to rely exclusively on the political process). So their fall-back interpretative arguments don’t deserve much credibility. My experience as a teacher is that even most of my predominantly liberal students don’t buy the Court’s fictions either.
In a word: Neither I (nor most other contributors to this website) accept the canard that “the Constitution is whatever the Supreme Court says it is.” The Constitution, rather, is what the FOUNDERS said it is.
There’s a school of thought out there that basically states the following:
All that needs be done for the federal government to assert exclusive authority over a given subject (healthcare, immigration, gun control, whatever) is for the government to “occupy the field,” and “intend a complete ouster.” This is more or less what Pelosi is saying in her statement above. Sure, in this particular instance she’s referring to the power of Congress to regulate healthcare which she claims to be unlimited. But that’s just because government healthcare is the current topic of debate. She and her leftist cohorts believe that the constitution grants unlimited authority to the federal government over the states and the People, don’t kid yourselves. Indeed, it isn’t just leftists who believe this, right-liberals (which virtually all prominent Republican politicians are) also believe this. The only real difference between the current left and right is this — the left seeks to establish exclusive federal authority as quickly as possible, the ‘right,’ on the other hand, seeks to do so more slowly, more cautiously. The ‘right’ takes a more rational approach to the subject, but it doesn’t make it any more legitimate or constitutional, nor any less destructive.
Pelosi makes me UP-CHUCK. Her and the liberal crowd in San Francisco, really California ia general, are responsible for the deaths of 3 members of the longtime residents Bologna family. Remember them? I doubt any liberals do. They were gunned down, the father and his two sons, in broad daylight by an illegal alien gang scum, that the liberals would simply not take off the streets. Yes siree, the famous vacation destination of San Francisco. Come to the land run by the liberal philosophy of Nancy Pelosi, Mayor, Gavin (trust fund kid)Newsom and the out of it mentally, Barbara Boxer, and especially the aging Dame of liberal California, Dianne Feinstein. They wish you good luck on your vacation–becaue with them in charge, you sure as hell will need it.
The point I make in my last post is, why would any rational person in the United States believe a thing Nancy Pelosi says? Why?
Well, you know what they say Bobby, “even a broken clock is right twice a day.” But your point is fairly well made, I think. However, people take her seriously because she’s unfortunately the Speaker of the U.S. House of Representatives, and therefore weilds a lot of power. Because someone is irrational does not mean that we should totally ignore them, particularly when they have the power to harm us. I doubt that any rational person believes what she says about virtually anything, but believing what she says and taking her seriously because of the power she has to harm us are not the same things.
Good points Terry Morris, I have to agree.
If one would assume that broad powers exist for the regulation of healthcare. The fact of compulsary healthcare coverage would force a person into “commerce” where no such relationship previously existed. This is unconstitutional beyond question.
Pelosi is either ignorant or trying to pull one over on an ignorant public. By her logic all human activity can be regulated under the commerce clause. Health care is a personal decision that in no way involves interstate commerce. The only area in which the federal government can claim legitimate power is in the regulation of insurance companies and any health services or device company. That doesn’t extend to the services rendered by a provider to a patient. And there is no part of the Constitution that can be construed as granting the power to the federal government to create and run a health insurance system.
Eric wrote:
By her logic all human activity can be regulated under the commerce clause.
That is precisely right! I’ve written about this issue many times before, but I don’t think I’ve ever said it so concisely as you did above Eric. Way to get down to brass tacs! Speaking of which, allow me to expand on what you said and take it to its conclusion:
By this construction which we’re calling “Pelosi’s logic”, not only can all human activity be regulated under the commerce clause, but all human activity eventually must be regulated via the commerce clause. After all, why would a government possessing unlimited power ever limit itself to exercising less than unlimited power? Because of its inherent goodness?
These people must be stopped at all costs!
Nancy Pelosi most likely truly believes that the power to regulate just about everything is indeed provided by our Constitution because that’s the way we get the job done and, after all, who’s complaining? The reality is that the grant of power, the “Commerce Clause”, giving Congress power to regulate “among the several states” was not intentioned to be used in a way that gives the Federal Government vast and unlimited powers over the states. Deliberate misuse of Article I, Section 8, Clause 3 is only upheld by a few Supreme Court opinions and an innocent willingness of the people to allow continuance. The more times it is incorrectly invoked, the larger the stack of usage events becomes ultimately making the job of correction very clear, easy, and fully supported by an overwhelming preponderance of indisputable evidence.
I feel that exertion of power using a semantically questionable “clause” in our Constitution results in week and unsound legislative foundation thereby creating of a “house of cards” which can be easily toppled by our states without consent of Congress or the President.
How can it be toppled? Well, if only two-thirds of the state legislatures can find agreement then a constitutional convention can be called. Assuming one is called, I would submit simply amending the constitution with the following proposed language:
28th Amendment:
Section 1. Article I, Section 8, Clause 3 of the Constitution of the United States is hereby amended as follows: (Add your own text here – what would you say? What would your state legislators say?)
You should note that proposed amendments become part of the Constitution instantly when ratified by three-fourths (38) of the States and they do not need the President’s signature nor approval of Congress.
Here’s the process: http://www.archives.gov/federal-register/constitution/
The Commerce Clause: http://en.wikipedia.org/wiki/Commerce_Clause
To the Democrats in Congress who don’t quite get it: I want to offer a personal pledge. I – and a lot of other people – have every intention of removing you from Congress in the next election if you stand in the way of health care legislation that the people want. That is not a hollow or idle threat. We will come to your district and we will work against you, first in the primary and, if we have to, in the general election. No public option!
The left will not justify this abuse by the Interstate Commerce clause, but by the "Promotion of General Welfare" clause. A much more defendable position for them to take, don't you think?
JD, you might be right that they’ll claim it’s constitutional under the general Welfare clause. but, if Nancy Pelosi isn’t part of the “left” you’re referring to, I don’t know what to say.
Why do I point that out? Because Pelosi’s entire argument in her press release rests on this kind of view of the commerce clause. That’s why the Professor addressed that in his article…..to refute this common misconception.
If they push the gW clause, we’ll have some replies available here too.
I dont know about you guys, but I suddenly have a overwhelming hope that nothing bad ever happens to the President or Vice-president because you know who would be next in line…(shudders with fear)…
Would Pelosi’s interpretation of “interstate commece” affect all 57 states? Just a little sarcasm to start off this early Sunday morning…