"What can Congress do that the Supreme Court would find unconstitutional? Or, what can Congress do that a president would veto as unconstitutional? It is not much exaggeration to say that Congress can do whatever it can muster a majority vote for, whether it is constitutional or not. The members only have to worry about...
The Commerce Clause of the US Constitution
Article 1, Section 8, Clause 3 of the United States Constitution gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." This clause is commonly referred to as "The Commerce Clause."
Interpretations of the Commerce Clause have differed significantly since the ratification of the Constitution. Conservative and libertarian legal experts interpret this clause from an originalist viewpoint, arguing that the power to "regulate" is actually the power to "make regular." Under this interpretation, the Commerce Clause was put into the Constitution to give the federal government the power to prevent states from erecting barriers to commerce against each other, such as leveling tariffs on goods from other states, or forbidding interstate exchange all together. Essentially, the originalists argue that the Framers wanted to ensure domestic free trade in America.
Progressives (and many neo-conservatives) tend to ignore historical arguments and rely on past Supreme Court interpretations of the Commerce Clause. One of the most cited cases is Wickard v. Filburn (1942). In this case, the Supreme Court ruled that the Commerce Clause gives Congress the right to regulate any economic activity that has substantial effect (in the aggregate) on interstate commerce.
Recently, the Commerce Clause has received revived attention in determining the constitutional basis for the "individual mandate" portion of the Obama Administration's new health care reform law, the Patient Protection and Affordable Care Act (colloquially known as "Obamacare"). The individual mandate would require all citizens to purchase health insurance, and those who do not purchase insurance would have to pay a penalty.
This interpretation has come under heavy criticism, and was even struck down as unconstitutional by two federal judges. Critics of Obamacare's individual mandate maintain that Congress does not not have the authority to punish people who choose not to purchase medical insurance. They point out that the act of not buying something cannot be construed as commerce or economic activity at all, and is therefore not subject to congressional regulation. However, three other federal judges upheld the individual mandate as constitutional under the Commerce Clause. They argued that because uninsured medical patients have a right to receive emergency medical care, regardless of their ability to pay, the choice to opt out of purchasing health insurance has a substantial effect on health care costs, and is thus subject to regulation under the Commerce Clause. It is widely believed that the U.S. Supreme Court will eventually make a decision on the constitutionality of Obamacare and its individual mandate, and in doing so, will drastically affect how the Commerce Clause is interpreted in the near future.
This topic page will help you understand the historical background and the current debate regarding the Commerce Clause. It contains discussions of the varying interpretations and analysis of how they have affected the growth of government regulation in the economy.
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