Ruth Marcus, the Health Care Reform Bill, the Commerce Clause, and the Ensuing Nonsensical Result


By: Jim Byrd

The health care reform bill that passed the House of Representatives, as well as the language in the Senate’s health care reform bill, have generated an unhealthy and contentious debate regarding the limited versus unlimited powers of the federal government. This is a debate about the soul of the United States. The heart and soul of the Constitution and this country’s founding principles are threefold: 1) individual rights and liberty, 2) free market ideas and national free trade, and 3) an expressly limited federal government. Barack Obama and the Democratic Party have shepherded Congress’ blatant usurping of the Constitution by violating all three of the above founding principles, which would be unprecedented, if not for FDR’s monarchical reign.

Most could not answer correctly why the founders even created a Constitution, much less the mechanisms that make it the nonpareil document that it is. Commerce was the primary catalyst for creating our Constitution.

After the Revolutionary War, the states operated as independent nation-states under the Articles of Confederation, created in 1781. The prosperity, cohesion, and unity of the newly unencumbered states was in jeopardy due to their inability to negotiate trade amongst one another, a function previously overseen by Britain. The primary issues that were the catalyst for calling the Constitutional Convention of 1787 included laws passed by some states that interfered with the flow of commerce between the states, the onerous tariffs between states on the transportation and import and export of goods, and that some states had the advantage of ports or being in strategic positions along river trade routes. The states without ports or river trade routes were harshly penalized for importing, exporting, and transporting their goods. Some states that owed debts to other states elected to cancel their debts, leaving no recourse for the state holding the canceled debt. For the fledgling 13 states to survive, there was a critical need for continuity of trade. The Constitutional Convention was originally called to amend the Articles of Confederation, with the alleviation of trade disputes in mind, but ended with the creation of one of the greatest governing documents ever created, the United States Constitution.

The despotic audacity of the House’s health care bill has its Leftist defenders of statism anemically countering the bill’s antagonists with the Welfare Clause and Commerce Clause as their portals into the world of unlimited federal power. The most obscene of the defenses of the health care bill written by the House, and dealing directly with the Stupak Amendment that stripped abortion funding from the bill, came from Marci Hamilton, the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, who absurdly and inadequately argued that stripping the bill of the ability to fund abortions was a violation of church and state simply because the Catholic Church was a proponent of the anti-abortion amendment. Now along comes Ruth Marcus, a columnist for the Washington Post, arguing that the health care reform bill in the House is constitutional by virtue of the Commerce Clause. After reading her article, quite frankly, Google and Wikipedia are not Ruth’s friends in this arena. Her literary journey into the merits of the Constitution is analogous to a heart transplant patient who has the unfortunate luxury of being operated on by the recipient of a Google and Wikipedia medical education– the prospect of either is bereaving. Incidentally, yet not surprising, Ruth Marcus possesses a law degree from Harvard.

In her substance-craving article, Marcus sets the tone of her argument with the most banal of Leftist arguments:

“But it’s being taken seriously in some quarters, so it’s worth explaining where the Constitution grants Congress the authority to impose an individual mandate. There are two short answers: the power to regulate interstate commerce and the power to tax.”
First, she wields the Commerce Clause:

“First, the Commerce Clause. Spending on health care consumes 16 percent — and growing — of gross domestic product. There is hardly an individual activity with greater effect on commerce than the consumption of health care.”

Marcus illiterately declares that the breadth of an industry in relation to the gross domestic product of the U.S. is a constitutional reason to be regulated by the federal government alone. Since 1932, the Left, when in control, have emphatically demonstrated that if the executive, legislative, and judicial branches of the federal government felt too constrained by the limitations of their enumerated powers, then the invoking of the Commerce Clause to pass, approve, or rule on whatever bill they chose is the sub-rosa that the Founding Fathers secreted away to use at their discretion. Marcus then relates the usual defective argument for using the Commerce Clause to expand the government: FDR era Supreme Court rulings. To further mock the erudite reader’s intelligence, she uses the most absurd case law of FDR’s reign to manifest the plausibility of her argument: the 1942 Wickard v. Filburn Supreme Court case. The following is the most enlightening of the self-inflicted arguments for how ludicrous the Left can be when in control of all three branches of government:

Before possessing a malleable Supreme Court, FDR’s New Deal suffered a successive string of defeats by the Supreme Court. In 1937, FDR devised the Judiciary Reorganization Bill to pack the Supreme Court with justices sympathetic to his New Deal. This annexing of the Supreme Court failed miserably as it was even too brazen for the FDR acolytes in Congress. But between 1937 and the Filburn case in 1942, by virtue of replacing retiring Supreme Court justices and a couple of justices who cherished their careers over their principles by switching to FDR’s side, FDR had control of the Supreme Court and Congress, and the caustic impact of his controlling all three branches of the government is felt to this day.

Roscoe Filburn was a small farmer during the time that FDR’s Department of Agriculture set production quotas for wheat. Filburn’s farm was allowed to grow 11.1 acres of wheat; he planted an additional 12 acres of wheat. The additional 12 acres of wheat were for his personal consumption and feeding his livestock. Once cognizant of his transgression, FDR’s government summarily assailed Filburn, even though the excess wheat would never leave the boundaries of his farm, and thus could not, under any conceivable rationale, affect commerce. Filburn was ordered to destroy his wheat (bear in mind that during the Filburn affair, there were soup lines in every city because people did not have enough to eat— the genius of liberals), and pay a fine for being a self-sustaining American, while the majority of citizens were experiencing a dystopian existence as a result of FDR’s policies.

Roscoe Filburn, incidentally, lost his case. The Left, once a fallacious law has been upheld by the Supreme Court (Wickard v Filburn, Roe v Wade, Kelo v City of New London, Katzenbach v McClung, etc.), will clutch that court case and bellow stare decisis when challenged. But the Wickard v Filburn decision usurped 150 years of Supreme Court precedence of limiting the federal government’s regulation to only the transportation of goods across state lines, roads, ports, and rivers.

Ruth Marcus argues as only a Harvard educated liberal attorney could. If she believes that health care should be regulated by the federal government because it consumes 16 percent of GDP based on Roscoe Wickard’s 12 acres of wheat, which were .000012 of the approximate 1,000,000 acres of farmland in the United States, then it is no wonder she is a columnist rather than a practicing attorney.
What is the relevance of his case today? Using the logic of FDR’s Wickard v Filburn case, if the House’s health care bill passes, a physician could be prosecuted and jailed for either treating himself or a family member, as that would have the same affect on commerce as the Wickard case.

It would serve gazetteers such as Ruth Marcus and her ilk well to be armed with at least a rudimentary knowledge of the original intent and meaning of the Commerce Clause, the Federalist Papers’ explanation regarding the Commerce Clause, and the arguments and debates of the authors of the Constitution regarding the Commerce Clause, rather than searching Google until she finds some silly explanation that befits her Leftist agenda, then incorporating that explanation in an article to justify the House’s health care bill.

By appraising the word “commerce” in the chronicles of the Constitutional Convention, the ratification debates, the writings of the Framers, and the Federalist Papers, the scope of the word “commerce” and the Commerce Clause is very limited indeed. With every usage of the word “commerce,” the narrowest meaning was used. The understanding at the time of the ratification of the Constitution was that “commerce” was never used to identify any industrial related activity preceding the act of trade, as it only pertained to the trade and transportation of said industrial related products between states. By being constrained within the boundaries of the narrow scope of the word “commerce,” the regulating of commerce did not include any act of industry or production and transportation intrastate, and it certainly did not grant the federal government the power to impose criminal penalties in the course of regulating commerce.

The Commerce Clause is one of the simplest clauses to understand in the Constitution, yet has been the most abused clause by agenda-driven politicians and courts.

The thought that the newly created federal government could possess the power to impose mandates (especially mandates on individuals, criminal penalties, and mandates creating prohibited laws outside the bounds of the enumerated powers), all under the guise of the Commerce Clause, would have been an abomination to the Framers, and the Constitution would never have been ratified.

By constitutional mandate, the federal government was granted its exclusive areas of regulatory powers, and the states were granted their areas of regulatory powers. During the constructing of the Constitution, the two were intended to be mutually exclusive. The states preserved their areas of sovereignty as mandated by the Constitution, especially within their areas of regulation. The Commerce Clause granted Congress the power to regulate trade between and among the states, not the power to directly regulate industry. Congress was not granted the power to regulate individual actions, nor the authority to mandate what an individual must purchase. In the 18th century, “to regulate” meant to “make regular.” Nothing more, nothing less. The Commerce Clause was to make regular the exchange of goods between the states and to bring parity between the states regarding interstate commerce. When a dispute arises concerning overlapping jurisdictions between the federal government and the states regarding commerce, the courts decide, based on the intent of the Constitution, which sovereignty has the authority. All intrastate commerce within the borders of a state would be under the exclusive control of that state without federal governmental interference.

One of the last great Supreme Court cases that championed the true meaning of the Commerce Clause, which preceded America’s first quasi-despotic ruler, Franklin Delano Roosevelt, and which started systematically dismantling the Constitution, was United States v. E. C. Knight Co. This case involved the ownership of 98% of the sugar refining industry. This was the first case that the Supreme Court heard under the Sherman Antitrust Act in 1894. The court ruled by a majority of 8-1 in favor of E.C. Knight Co. Since the case involved manufacturing rather than transportation or commerce, the Supreme Court determined it was the state’s responsibility to regulate, if they so chose, since the activity was confined within the borders of a state, and outside the designated parameters of the Commerce Clause. Chief Justice Melville Fuller summed up the Framers’ intentions of the Commerce Clause in one sentence: “Commerce succeeds to manufacture, and is not a part of it.” This case has been unceremoniously non grata for the Left. Stare decisis be damned.

Secondly, and for her dénouement, Marcus wields the Sixteenth Amendment as Congress’s authority to mandate the purchase of health care. She states, “Which brings us to the alternative source of congressional authority, the ‘Power to lay and collect Taxes, Duties, Imposts and Excises.’” This is as absurd as Marci Hamilton’s argument that by not using federal funds for abortion, a violation of the separation of church and state has been committed. Marcus’ sole reason that gives Congress the authority is if the mandate is administered through the tax code. She states, “The individual mandate is to be administered through the tax code: On their forms, taxpayers will have to submit evidence of adequate insurance or, unless they qualify for a hardship exemption, pay a penalty.” Her logic: if a criminal such as Charlie Rangel can write it into the tax code, then print it on a tax form, it must be constitutional.

Liberals equate a justice who rules in a strict constructionist manner, a radical right-winger, and a justice who commits judicial activism to the detriment of the Constitution, as champions of progressivism. The Left wring their hands and gnashes their teeth when a ruling aligns itself with the original intent of the Constitution; a ruling that follows a strict constructionist’s interpretation is rarely sympathetic to the Left’s ideology. But, though the Left bemoans the fact that the current Supreme Court is far too “conservative,” even the most ardent of constructionists on the court are a far cry from being strict constructionists.

No one sitting justice on the Supreme Court could be considered an absolute constructionist. An absolute constructionist would, if presented a case, disassemble FDR’s New Deal, LBJ’s Great Society, and eradicate 95% of all federal laws unconstitutionally tied to the Commerce Clause. Only a handful of federal judges would be left in the aftermath, as there would be little for them to do. The entire 95% of the laws, incidentally, could be found between the election of FDR in 1932 and the current Obama administration. This anecdotal analysis does not intend to label Scalia, Thomas, Roberts, and Alito as quasi-constructionists; the intent is to merely emphasize the impossible position that justices face when confronting laws of such unconstitutional nature that have nevertheless become so ingrained in American society and jurisprudence that it is an impossibility to untangle and correct from the bench. It is impossible to disencumber America from these laws; how would a sitting justice even begin to untangle an unconstitutional entitlement program, such as Social Security, Medicare, Welfare, etc., into which the entire workforce of the United States has paid by having the premiums involuntarily pilfered from their paychecks the entirety of their working lives, in the stead of investing the funds into personal retirement accounts?

This blatantly unconstitutional health care bill and its mandate forcing Americans to purchase health care insurance, either under the guise of the Welfare Clause or the Commerce Clause, would be on par with the perpetually lamentable New Deal fiascoes. The most pathetic aspect of this bill is not the exposed abject ignorance and/or disdain that Barack Obama and the Democratic-led Congress have demonstrated regarding the Constitution, but the overwhelming number of constitutionally illiterate apologists, such as Ruth Marcus, who come skulking about from their burrows when an opportunity arises to abrogate the Constitution, and thus, the American way of life.

Ruth Marcus is guilty of affecting commerce in a negative manner on two occasions about which I am personally aware: 1) the time she spent composing her article deprived the economy of currency she would have spent if she had gone shopping at a local bookstore and purchased The Federalist Papers, a copy of the Constitution, a book on the Constitutional Convention debates, and a couple of non-politically correct history books, which she desperately needs; 2) the five to ten minutes I spent reading her article, when I could have been shopping online at amazon.com searching for the book, Why do Harvard and Yale Law School Graduates Know so Little About Constitutional Law and so Little About the Constitution?

About The Author Jim Byrd:
Jim Byrd's website is A Skewed View.
Website:http://www.jimbyrd.com

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