An Important New Limit on the Commerce Clause

Broccoli carried the day.

To the delight of conservatives and libertarians and the dismay of many legal scholars, the Supreme Court ruled that the commerce clause in the Constitution does not empower Congress to force people to buy health insurance — or healthy green vegetables like broccoli, for that matter.

Widely dismissed — even ridiculed — by most constitutional scholars, the broccoli argument was cited by Chief Justice John G. Roberts Jr., who also wrote, “Under the gov­ernment’s theory, Congress could address the diet problem by ordering everyone to buy vegetables,” adding, “That is not the country the framers of our Constitution envisioned.”

Charles Fried, a constitutional law professor at Harvard, said from Rome, where he was on vacation, that he was “dispirited” by the ruling. “The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence,” he said. “It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.”

Professor Fried, a solicitor general under President Ronald Reagan, is a conservative and not a fan of the heath care law, but he has consistently argued that it was constitutional.

While the health care legislation itself survived, the limitation of Congressional power under the commerce clause is likely to have far-reaching consequences, and the decision may prove a Pyrrhic victory for liberal supporters of Congress’s expansive power. Some Libertarians, while disappointed that the law was not struck down, were celebrating the stake the court drove into the heart of the commerce clause.

“We finally won a three-decades-long battle over the commerce clause,” said John Eastman, a conservative and a professor at Chapman University.

The Supreme Court nonetheless upheld the act under Congress’s taxing power, but a strong libertarian argument runs through that part of the opinion, too. Chief Justice Roberts made clear that the health care act survived because the “penalty” for not buying health insurance functioned as a tax, and is sufficiently modest that individuals remain free to opt out of the mandate if they wish by simply paying a tax.

In this regard, it is like the federal tax on cigarettes. Congress does not want Americans to smoke, so it imposes a tax on those who do. But it is not so high as to make it financially prohibitive for people to smoke; it is not, say, $1,000 a pack. That would be deemed a penalty or fine. Where that line should be drawn in future legislation — between “tax” and “penalty” — is likely to be the subject of intense argument and continuing litigation.

If nothing else, Chief Justice Roberts has probably opened the floodgates to new litigation. With a commerce clause victory in hand, newly emboldened libertarians are shifting their sights to Congress’s broad taxing and spending powers. “It’s the next dragon we have to slay,” Professor Eastman told me.

Source & Image : New York Times