Judicial Activism & the Commerce Clause

Despite many months of discussion comparing ObamaCare to Mitt Romney’s healthcare reform in Massachusetts, many journalists, politicians and the like still cannot – or will not – get it through their heads that the legal arguments made against ObamaCare simply don’t apply to Romney’s reform. Just last Thursday, the Washington Post reported that supporters of ObamaCare are arguing that

“a ruling [against ObamaCare by the Supreme Court] could prompt a discussion about whether Romney’s health-care overhaul, upon which Obama’s law was largely modeled, is unconstitutional. ‘Romney does not have clean hands here,’ said Rep. Gerald E. Connolly (D-Va.). ‘Saying that we stretched the commerce clause too much, and therefore it’s not constitutional — well, what about the law in Massachusetts that Mitt Romney signed? It has exactly the same premise.’”

In a letter published in yesterday’s Washington Post, CFJ Executive Director Curt Levey corrects the constitutional error made by Rep. Connolly and many others:

“Mr. Connolly appears unaware that the Commerce Clause is part of the U.S. Constitution’s enumeration of the federal government’s limited powers. The clause and limits do not apply to Massachusetts or any other state. The congressman’s apparent lack of a basic understanding of the source of congressional power tells us a lot about why Congress often acts as if there were no limits on its authority.”

Connolly’s error is not a superficial misstatement, like Barack Obama’s famous "I’ve now been in 57 states." Instead, it betrays a misunderstanding of the fundamental relationship between the federal government on the one hand and the states and citizens on the other. The enumeration of Congress’ powers in Article I of the Constitution is not only the basis of federal authority but also – through its implied limits – the primary protector of individual liberty (remember, the Bill of Rights wasn’t in the Constitution approved by the Constitutional Convention).

Obviously, the Founding Fathers wouldn’t have listed Congress’s specific powers in Article I if they had intended the breadth of those powers to be unlimited. That simple fact is the obstacle Solicitor General Donald Verrilli and the rest of the ObamaCare legal team can’t get around. They have never been able to explain how the expansive interpretation of the Commerce Clause necessary to uphold ObamaCare’s individual mandate leads to anything but unlimited Congressional power.

They failed to do so again last week when they faced the nine Justices of the Supreme Court. If the Court strikes down the individual mandate, it will be this fundamental flaw – not judicial activism as the President would have us believe – that doomed ObamaCare.