Justice Roberts and the Commerce Clause
July 8, 2012
“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not meta- physical philosophers. Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”
This is a quote from Chief Justice Roberts’ opinion in the Affordable Care Act case, recently decided by the Supreme Court. Roberts seems to think that economists think differently about the terms “activity” and “inactivity” than the rest of us do and differently than the framers of the Constitution, who were, he says, “practical men” and not “mere visionaries.” Well, that is reassuring to know about the framers of the Constitution and certainly is different than what most of us are taught in school about those men, who wrote what one commentator described as the best plan of government ever written by human beings. It is good to know that they did this by merely applying “practical reason” and not speculative “theories.”
But in all seriousness who is being “practical” here, Justice Roberts or his alleged economists? It is hard to say that it is not the economists because one does not have to be an economist or a speculator or theorist to know that both activity and inactivity “have measurable economic effects on commerce.” The case Roberts must deal with is Wickard v. Filburn, where a wheat farmer was fined for growing more wheat than he was allotted by the national government even though he did not use this wheat to engage in commercial activity. As Roberts says in his opinion, the wheat farmer did not engage in any commercial activity by growing his wheat, which he used to avoid engaging in commerce by buying wheat from others to feed his cattle. So was the farmer engaged in a commercial activity or not? He was certainly engaged in an activity that affected interstate commerce but so too are those who actively choose not to purchase insurance.
If I am not mistaken, the proper issue is: Could the national government compel wheat farmers to grow a certain amount of wheat? It is accepted, even by Justice Roberts who does not wish to overturn the Wickard case, that it can compel farmers not to grow beyond a certain amount of crops, without paying a penalty. Why can they do this, even though the excess wheat is not used for commercial purposes? Because, as Roberts knows, such excess affects commerce among the several states. Well, so does the failure of farmers not to grow enough and, if the national government can compel farmers not to grow excess wheat because it affects interstate commerce, why can it not compel farmers to grow a certain amount of wheat; that is, to compel them to do something that they would not otherwise have done because not doing it affects commerce among the states?
You know, Justice Roberts’ heart is in the right place, in favor of limiting the power of the national government under the commerce clause. And this isn’t for me a bad idea as this power has been used as a guise by which to regulate loan sharking and gambling and the transportation of women across state lines for immoral purposes, as well as stolen vehicles. So this clause has been used as a police power, which Roberts correctly claims the national government should not have. But he is mistaken in his attempt to limit the Congress’ power under this clause and he is bound to fail because to succeed he would need to distinguish Congress’ commercial regulations from other kinds of regulations such as morals regulations or health regulations. Roberts and some on the Court made much of the fact that if Congress can regulate people’s decisions regarding health insurance then it could regulate what we buy at the super market. But if the purpose of the latter hypothetical law is promoting health rather than commerce, then it would be unconstitutional.
“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce.” The important difference is not between activity and inactivity when something done or undone has an impact on commerce; rather, the important difference is or should be between those laws that regulate commerce and those that while pretending to regulate commerce are actually not commercial regulations at all. This is where Justice Roberts should have drawn the line between constitutional and unconstitutional laws passed under the commerce clause. Obviously, the national government makes us purchase stuff all the time, compels us to buy certain stuff like properly equipped cars or more specifically catalytic converters. Just as obviously, many of these regulations have little commercial value and certainly regulating commerce is not their primary justification. But they will continue under Roberts’ scheme, a scheme that is unlikely to stem the use of the commerce power to regulate activities for reasons other than commercial and, therefore, unlikely to stem the expansion of the power of the national government.
Addendum: Here is another quote from Justice Roberts:
“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
If I am not mistaken, this is precisely what the Congress did to the wheat farmer involved in the Wickard case, “force [that] individual into commerce [buying wheat to feed his cattle] because [he] elected to refrain from commercial activity.” And, of course, the Court sustained what amounted to a compulsion to engage in commercial activity.