Among the cases attacking the constitutionality of Obamacare, one filed last month by a Tennessee lawyer—previously unknown at the national level—could be the most revolutionary.
Attorney Van Irion of Knoxville hopes his case will eventually reach the U.S. Supreme Court. The Court takes very few cases, so his may not make the cut. But watching it work its way through the lower courts will be a constitutional education for all Americans.
Supreme Court wonks who follow the trends and nuances in the Court’s opinions likely would tell Irion his case is hopeless, but he has done his constitutional law research. He recognizes his case is a long shot because it asks the Court to overturn 70 years of precedent. But he is undeterred, and he’s putting his money where his mouth is by paying all court costs out of his own pocket and acting pro bono, free of charge to his clients.
On April 8 when he filed his case, he had one client, and he invited others in Tennessee to join. Word about the case spread like wildfire nationwide through the Tea Party movement and two interviews on Fox News. Now he has more than 31,000 clients.
Most other Obamacare cases attack the constitutionality of the individual mandate, but that is just one provision of the complex bill, requiring all Americans to buy private health care insurance merely as a condition of residing in the United States. The individual mandate is an unprecedented expansion of federal power under the Commerce Clause of the U.S. Constitution and is almost certainly unconstitutional.
But Irion’s case goes much further, arguing, “Congress has absolutely no constitutional authority to regulate health care. Period.” The whole bill is unconstitutional, he argues in his suit.
Original Intent at Issue
Irion rests his case on the original intent of the Commerce Clause, which authorizes Congress to “regulate commerce . . . among the several states.” It’s very clear, Irion says, the original intent of that clause was merely to prevent one state from discriminating against goods imported from another state. This is a very limited power, he notes, as the Court typically ruled for about 150 years.
The Founders included it to counteract state laws giving competitive advantages to in-state commerce at the expense of interstate commerce. Early on, as it fell to the U.S. Supreme Court to give content and meaning to the Commerce Clause, the Court frequently struck down such discriminatory state laws.
Later, as commerce among many states and at the national level became more common, cases arose involving dueling state and federal laws aimed at regulating intrastate commerce. The Court had to determine which system—state or federal—prevailed. But the question bedeviling the Court, to this very day, involves framing a bright-line rule governing the circumstances under which the federal government can under the Commerce Clause regulate purely intrastate activity that somehow intersects with interstate commerce.
This is an important question for laws regarding health care, which is contracted for and provided almost entirely on an intrastate basis.
Open Question for Court
The Court has tried and abandoned various formulations. The latest one, still on the books, holds the federal government may regulate “those [intrastate] activities that substantially affect interstate commerce.” The Court has limited these federally regulated intrastate activities to “economic” or “commercial” ones involving commodities, even though the economic impact is sometimes an indirect or negative one.
Consider the infamous 1942 case Wickard v. Filburn. The Court upheld as constitutional a federal law limiting the amount of wheat farmers could grow for on-farm consumption. The purpose of the law was to stabilize wheat supply and pricing on a national scale. So, although the federal government allowed farmers to grow small personal allotments, farmers who needed more wheat had to buy it on the open market or be fined.
A farmer was fined and challenged it, arguing his personal allotment had no nexus to interstate commerce. He lost. The Court held his allotment was trivial but, if aggregated by other farmers, could affect interstate commerce and wheat prices.
Some 63 years later, in Gonzales v. Raich in 2005, the Supreme Court reaffirmed the “commodity” reasoning, holding a federal law criminalizing the possession of marijuana trumped a California medical marijuana law allowing wholly intrastate possession of small amounts for personal, medicinal consumption. Thus an individual possessing medicinal marijuana, as allowed by state law, could be prosecuted for violating the federal law.
But in United States v. Lopez, the Supreme Court in 1995 emphasized the intrastate activity that can constitutionally be reached by a federal statute must be “economic.” Noteworthy for proposed health care reform, the Court found no authority for federal regulation of matters relating to health, education, crime, and welfare. These are police powers “retained by the States,” the Court found, not enumerated federal ones, the Court affirmed.
Irion finds support for his case in Lopez and believes the wheat and marijuana cases are a “gross misinterpretation” of the Commerce Clause, which he says was never “intended to allow Congress to regulate basically every kind of human interaction.”
There is no question Irion is right about what the framers of the Constitution intended. Let’s hope the Court decides to return to those original principles.
Maureen Martin, J.D. ([email protected]) is senior fellow for legal affairs at The Heartland Institute.