by Col. John Eidsmoe

During the March 27th oral arguments before the Supreme Court on the constitutionality of President Obama’s health care legislation, swing Justice Anthony Kennedy asked the U.S. Solicitor General a key question.  That question was, and is, “whether or not there are any limits on the Commerce Clause.”

Not only is this the key issue underlying the debate over socialized health care; it is a basic issue of constitutional interpretation.   Did the Founding Fathers create a constitutional republic in which the federal government has only those powers delegated to it by “we, the people” through the Constitution?  Or did they create a national government which has all powers except those specifically denied to it by the Constitution?

The Framers thought the answer to that question was self-evident.  Following John Locke,  they saw the Constitution as a social compact in which the people delegate certain powers and no others.  But just so someone in the twenty-first century didn’t get it turned around, they carved it in stone with the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Commerce Clause, found in Article I, Section 8 of the Constitution, delegated to Congress the power to regulate three types of commerce:  interstate commerce, international commerce, and commerce with and among the Indian tribes.   It did not delegate to Congress — and therefore, pursuant to the Tenth Amendment, withheld from Congress — power to regulate intrastate commerce, that is, commerce within a state.  The Commerce Clause is therefore a grant of power to Congress, but within that grant is a clear limitation — or so the Framers thought.

In similar fashion, the General Welfare Clause of Article I, Section 8 is also both a grant and a limitation of power.  The clause grants to Congress the power to tax and spend for the “general welfare” of the country.  The word “welfare” is a grant of power, but the word “general” is a limitation on that grant. Congress may tax and spend for the general welfare of the country as a whole, but not for the specific welfare of individuals, regions, or socio-economic groups.

From the beginning of America’s constitutional history, lawmakers have been sensitive toward these limitations.  James Madison, called by many the Architect or Father of the Constitution, objected in Congress to a bill that would provide aid for French refugees.  Madison was sympathetic to the refugees’ plight but concerned that the bill was unconstitutional and would set a bad precedent.  He declared,

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” (Congressional Record, p. 170, Jan. 1794.)

In 1854 President Franklin Pierce vetoed a bill to provide federal lands for the treatment of the insane.  In his veto message he declared,

“I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded.” (Franklin Pierce, Veto Message, May 3, 1854. http://www.lonang.com/exlibris/misc/1854-pvm.htm.)

In 1887 President Grover Cleveland vetoed a bill that would have appropriated $10,000 to purchase seed and distribute it among farmers who faced hardship because of a drought.  In his veto message he stated,

“I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people.” (Grover Cleveland, Veto Message, February 16, 1887, Congressional Record, 49 Cong., 2d Sess., vol. XVIII, Pt. II, 1887, p. 1875.)

Gradually, in the twentieth century, Congress began to usurp more and more authority to regulate intrastate production as well as interstate commerce.  In NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937), the Court held 5-4 that Congress through the National Labor Relations Board could regulate local labor disputes in the steel industry because they might affect the flow of steel in interstate commerce.  And in Wickard v. Filburn, 317 U.S. 111 (1942), the Court said Congress could punish a farmer for raising excess grain on his own farms and feeding it to his own livestock, because that could have a substantial effect upon interstate commerce.

Likewise, in Steward Machine Co. v. Davis, 301 U.S. 548 (1937), the  Supreme Court upheld the payroll tax provision of the Social Security Act, as authorized by the General Welfare Clause because ultimately everyone benefits from it.  One can see the logic of these decisions, but the result is that the distinction between interstate and intrastate commerce, and between general welfare and specific welfare, have been virtually obliterated.

But maybe not totally obliterated.  In United States v. Lopez, 514 U.S. 549 (1995),  Chief Justice Rehnquist ruled in a 5-4 decision that a federal ban on firearms in or around public school buildings was unconstitutional.   The fact that firearms might adversely affect education and that education affects the national economy was not sufficient, the Court said, to warrant the conclusion that this legislation substantially affected interstate commerce.

Obama’s nationalized health care legislation goes much further than this.  It requires states to compel people to purchase health insurance, or pay a penalty for refusing to do so.  States that refuse to impose this requirement will be penalized by losing their federal Medicaid funding.  By the narrowest of margins, after much arm-twisting by the Obama Administration, Congress dutifully passed this legislation.

If Congress can do this, is there any distinction between interstate and intrastate commerce, any distinction between commerce and production, any distinction between general and specific welfare.  To put it more bluntly, if this is constitutional, are there any powers still “reserved to the States, or to the people”?

Stay tuned.  We’ll find out Thursday, when the Court issues what portends to be a landmark decision.

Click here to read Part Two of this article.

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Dr. John Eidsmoe is a retired Air Force Judge Advocate and Alabama State Defense Force Colonel and Chaplain. He is also a constitutional attorney who has authored 13 books and and produced numerous audio and video lecture series, and holds five academic degrees in law, theology, and political science, as well as graduating from the Air Command and Staff College and the Air War College. He also holds a Fifth Degree Black Belt in Karate.