What have the courts said?

Constitutional Moment of the Day

Of the three branches of the federal government (legislative, executive, judicial), the judicial branch is probably the least understood. The entire article concerning judicial powers (Article III) consists of only 377 words. Here are some of those words.

Article III, Section 1
The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish . . .

Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Eleventh Amendment supersedes the bolded judicial power.

Quote of the Day

“The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution.”
- Joseph Story, Commentaries on the Constitution, 1833

Unfortunately, the historical landscape of the Supreme Court is littered with rulings that are not “consonant with the apparent objects and intents of the Constitution.”


A Reasoned and Unemotional Case Against the Constitutionality of the Health Care Reform Law

In previous installments on the constitutionality of the health care reform law, I discussed my reasoning based on the Constitution and the words of the Framers of that historic guardian of liberty. The constitutionality of the law under discussion, however, will ultimately be decided in the Supreme Court. So, let’s look to previous cases to gain some insight as to the law’s constitutionality.

What the courts have said:

Proponents of the current health care reform law defend its constitutionality by pointing to the commerce clause of the Constitution. The third clause of Article I, Section 8 of the Constitution states, “The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The questions then are, Is health care/insurance commerce, and Can it be regulated by the federal government? There have been hundreds of Supreme Court cases involving the commerce clause. Although most do not deal directly with the issue of health care, relevant dicta (comments by a judge in a decision or ruling which are not required to reach the decision, but may state a related legal principle) can be found in several historic rulings.

One of the first cases involving the commerce clause was Gibbons v. Ogden (1824). In delivering the opinion of the court, Chief Justice John Marshall actually broadened the definition of commerce giving more regulatory power to the federal government. However, in his decision he specifically defined the areas of regulatory legislation which should remain totally under the authority of a state. When discussing state inspection laws he said:

They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to a general government; all of which can be most advantageously exercised by the states themselves. Inspection laws, can be most advantageously exercised by, quarantine laws, health laws of every description (bold added), as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass.
No direct general power over these objects is granted to congress, and, consequently remain subject to state legislation.

And, this was from a man who was a vocal proponent of a strong federal (general) government.

Four years later in Willson v. Blackbird Creek Marsh Co. Chief Justice Marshall again addressed the issue of community health, this time siding with a state’s (Delaware) right to regulate navigation (and thus commerce) of a stream by building a dam.

The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states.(bold added)

Once again the high court stressed that health concerns fall within the realm of the states.

But, what about insurance, can it be regulated by the federal government, or is it also under the purview of the states? The waters here are murkier.

In Paul v. State of Virginia (1868), a unanimous decision of the court said of insurance policies:

The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word (bold added). They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale.

The precedent, that insurance is not commerce, was upheld and even broadened for over 75 years until it was overturned by United States v. South-Eastern Underwriters Association (1944). Justice Black concluded that even though the contracts (policies) may be local in nature, premiums collected from policyholders flow from many states to a company’s financial center, while claim payments flow back to the policyholders, crossing state lines, thus making insurance interstate commerce and therefore open to Congressional regulations.

But, are health services considered “commerce” and thus able to be regulated by Congress? Yes, according to a Supreme Court ruling in American Medical Association v. United States (1943). The Court affirmed a ruling by the Court of Appeals that “the restraint of trade prohibited by the statute (Sherman Antitrust Act) may extend both to medical practice and to the operations of Group Health (a nonprofit medical care provider),” even though Group Health served only its own members (parentheses added).

However, in 1952, the Supreme Court refused to overrule a District Court decision that found, "The sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of the Sherman Anti-Trust Law, nor is it commerce within the meaning of the constitutional grant of power to Congress `To regulate Commerce . . . among the several States.'" (United States v. Oregon Medical Society) In delivering the opinion of the Court, Justice Jackson tries to clarify the above-cited 1943 decision, “American Medical Assn. v. United States, does not stand for the proposition that furnishing of prepaid medical care on a local plane is interstate commerce. (bold added)” That seems definitive. If you go to your local doctor, hospital, or clinic and pay with a prepaid insurance policy you are not engaging in interstate commerce, and therefore the transaction cannot be regulated by Congress.

I told you the waters are murky. Throughout the long history of the Supreme Court, rulings concerning the applicability of the commerce clause have bounced back and forth like a ping-pong ball batted about by alternating majorities of nine black-robed men and women.

However, it seems that the farther removed we become from the historical context in which the Constitution was written, the more the original intent of the Framers becomes corrupted, and we are unable to immediately recognize the unconstitutionality of a law. I believe this is exactly what has happened with the current health care reform law. James Madison, the Father of the Constitution, has passed down a warning for all those who are willing to listen.

“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” – James Madison

Are you listening?



It’s not too late.


Next time . . . Happy Tax Day!!