A bloated 'Commerce Clause' courtesy of the post WW II U.S. Supreme Court:
Right to Grow Pot Is Like a Right to Be Uninsured: Ann Woolner
Commentary by Ann Woolner
Bloomberg News Service
bloomberg.com
Dec. 2 (Bloomberg) -- Angel Raich’s doctor swore under oath that her life depended on her getting marijuana. A caregiver was growing it for her in California, which legalized it for medicinal use.
Too bad, the U.S. Supreme Court ruled. Congress outlawed marijuana and can do so under its constitutional powers to regulate interstate commerce, the justices held.
What, you may ask, do a few plants for a sick woman’s comfort have to do with interstate commerce?
The Supreme Court saw little difference between her and Ohio farmer Roscoe Filburn, who grew more wheat to feed his chickens and other livestock than Washington allowed under a 1938 agricultural program.
The grain never crossed his property line much less a state line. The Supreme Court in 1942 said it could still be linked to interstate commerce, if you thought about it hard enough. So it, too, was subject to federal regulation, the court said.
These days, the independent streak shown by Raich and Filburn lives in those who claim the government has no right to force any American to buy health insurance.
They, too, are wrong.
Consider their best example, a metaphorical man I will call Joe. He never gets sick, never sees a doctor or checks into a hospital. It won’t be disease that kills him in a few years but an SUV driven by a 318-pound chain-smoker whose heart seized up just as Joe jogged in front of her car on his way to buy flax granola.
Can Congress force Joe to buy a government-approved health insurance plan or else face a special tax so that insurance will be cheaper for 318-pound chain smokers?
Sure to Follow
This is the question sure to follow any law that requires people to enroll in a government-approved health insurance plan or be slapped with an extra tax.
Getting a bill through Congress, tough as that is, is only one step. Opponents are sure to challenge it in court.
My money is against them. The Roberts Supreme Court would have to ignore, reverse or parse its way around inconvenient precedent for them to prevail.
(On second thought, I might not bet a lot of money.)
The Constitution specifically authorizes Congress to tax citizens to provide for the nation’s “general welfare.” As Filburn and Raich learned, the Constitution’s commerce clause lets Congress regulate even seemingly self-contained aspects of our lives.
On the tax question, few matters are more tied to a nation’s general welfare than the health of its people. When Americans die each year for lack of access to medical help, when families go bankrupt because of sickness, it is clearly in the interest of the nation’s general welfare to fix the problem.
Illegal Taxes
Some kinds of taxes are illegal, such as those levied purely to punish certain conduct. That’s how opponents characterize this one. Yet, its purpose is to encourage conduct considered good for the country and to help pay for health care.
A closer call is the claim Congress can’t require people to sign up for insurance. Opponents are right that the commerce clause has never been stretched to require citizens to buy something.
Previous rulings pertain to people doing something the government forbids, not refraining from doing that which the government requires.
And yet, the Raich and Filburn rulings should carry the day for health-care reformers. Her personal pot use and his stash of livestock feed became Congress’s business because of the effect they would have on the economy if everyone did what they were doing.
Private Crops
If lots of farmers relied on their own private wheat crops to feed their livestock, that would have a “substantial impact on interstate commerce,” the high court said. So Congress had constitutional authority to regulate it.
Likewise, Raich’s private use of marijuana by itself wouldn’t cause the tiniest ripple in the nation’s economy or commerce. But if everyone with any medical need for it were allowed to set up little pot farms in their basements, Congress’s authority to regulate or ban drugs would be undercut.
That said, two cases do limit the commerce clause’s reach. The Supreme Court said Congress couldn’t use the clause to justify the Violence Against Women Act and, earlier, a federal law forbidding guns on school grounds.
So what? It’s hard to find a connection between the national economy and either of those problems, violent crime and guns at school. It’s far easier to argue a link between interstate commerce and health care, which constitutes more than 17 percent of the national economy.
And yet, there is Joe, who has no need for health insurance. Maybe he is prepared to pay out of his pocket for knee surgery if all that running tears a meniscus.
National Shame
His problem is that his individual decision, multiplied across the country millions of times, would make it impossible for Congress to fix what is clearly a national shame: the lack of basic health care for millions of Americans.
If reforming health care isn’t considered good for the nation’s general welfare, if the effect it has on the economy isn’t considered a matter of interstate commerce, then nothing is.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.
Last Updated: December 1, 2009 21:00 EST |
