Vinson vs Obama Care part 2: Definition of Commerce Clause

USA Today reported,

Obama White House officials called the ruling "judicial activism,"and the Justice Department announced it would appeal: "We strongly disagree with the court's ruling today and continue to believe -- as other federal courts have found -- that the Affordable Care Act is constitutional."

It is always funny to hear the Left cry "judicial activism" when that is their very tactic to advance their positions. Not only is the tactic to call Judge Vinson's decision "judicial activism" absurd, it is outright baloney. But the Administration's tactic to ignore Vinson's decision doesn't stop there. They with their Media accomplices cite two cases where Judges have said Obama Care is Constitutional. Therefore, it is OK for the Administration to be in contempt of two Federal court's ruling that say otherwise. And of course we have to throw in some emotional rhetoric that makes no sense at all. As Senior Advisor Stephanie Cutter states in the same article,

the judge's decision puts all of the new benefits, cost savings and patient protections that were included in the law at risk

So what if it is unconstitutional. We want the power and that mean spirited activist judge took away rights from poor people.

If you bother to read the decision, you will see judge Vinson spends quite a few pages offering a historical overview of the Commerce Clause. I believe he does this for three reasons. First, I think he wants to explain the original intent of the Commerce Clause. Second he desires to expose the evolution and expansion that has over time arisen in order to justify the Federal government's accrual of power. Finally, I believe Vinson wants to contrast the arguments put forth by the Administration with what has historically been accepted.

As you will see, Judge Vinson wants to abide by established case law as to the meaning of the Commerce Clause and apply it fairly to Obama Care. But by the Defense's own admission, ObamaCare simply doesn't pass the definitional test. I will summarize the first two points and then look to Administration's understanding as opposed to even the most broad understanding of the Commerce Clause in the next post.

Vinson offers the main reason why the Commerce Clause came into existence.

There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war. [page 23]

He defines commerce,

The Supreme Court’s first description of commerce (and still the most widely accepted) is from Gibbons v. Ogden, supra, which involved a New York law that sought to limit the navigable waters within the jurisdiction of that state. In holding that “commerce” comprehended navigation, and thus it fell within the reach of the Commerce Clause, Chief Justice Marshall explained that “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” 22 U.S. at 72. This definition is consistent with accepted dictionary definitions of the Founders’ time. See 1 Samuel Johnson, A Dictionary of the English Language (4thed. 1773) (commerce defined as “IntercourseAlexander Hamilton intimated in The Federalist, however, it did not at that time encompass manufacturing or agriculture. [page 22]

Now on page 23 there is a footnote that must not be overlooked. It states,

As an historical aside, I note that pursuant to this original understanding and interpretation of “commerce,” insurance contracts did not qualify because “[i]ssuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia...

Insurance is specifically stated not to come under the commerce clause. Imagine that! Vinson goes on to explain the evolution of the definition of the Commerce Clause.Vinson concludes these cases,

...it was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states. And when it did, the Supreme Court at that time rejected the broad conception of commerce and the power of Congress to regulate the economy was sharply restricted. See, e.g., Kidd v. Pearson, supra (1888). Thus, for most of the first century and a half of Constitutional government (with the possible exception of Gibbons v. Ogden in 1824), the Clause was narrowly construed and given “miserly construction.” [page 28]

But then a major shift occurred "in 1937, beginning with the first of three significant New Deal cases." In
N.L.R.B. v. Jones & Laughlin Steel Corp,

...the Supreme Court, after recognizing the well known principle “that acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power” [see id. at 31], held for the first time that Congress could also regulate purely intrastate activities that could be said to have a “substantial effect” on interstate commerce. “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. [page 30]

So now "indirect" activities that take place within a state can be regulated by the Federal government even though they do not directly have to do with interstate commerce. The next two cases simply expand this idea into other activities such as agriculture.

Together, Jones & Laughlin Steel, Darby, and Wickard either “ushered in” a new era of Commerce Clause jurisprudence “that greatly expanded the previously defined authority of Congress under that Clause” [Lopez, supra, 514 U.S. at 556], or they merely “restored” the “broader view of the Commerce Clause announced by Chief Justice Marshall.” [page 32]

There are several more cases that Vinson cites, it is sufficient to say that the United States government has greatly expanded the Commerce Clause to have a wide impact on the powers enumerated to itself. Yet even then the Courts have restrained some of Congress' attempts at their expansion of power. In the case of the United States against Morrison, a challenge to the Violence Against Women Act,

The government argued in that case --- similar to what it did in Lopez --- that Congress could regulate gender-motivated violence based on a syllogistic theory that victims of such violence are deterred from traveling and engaging in interstate business or employment; they are thus less productive (and incur increased medical and other costs); all of which, in turn, substantially affects interstate commerce. [page 34-35]

The Court argued that, "it would require the Court “to pile inference upon inference,” and, in the process, run the risk of 'completely obliterat[ing] the Constitution’s distinction between national and local authority.'”

In conclusion, even with all of the expansion of pwer Congress and the Federal Courts have accrued, the idea of enumerated powers is still in the substance of their arguments. In the end, it may very well be that the concept of "enumerated powers" may have save dus from Obama Care.

In the next post, we will look at Obama Care in light of the current definitions and see if there is any judicial activism truly going on.