Thursday, August 26, 2010
Wheat, Weed, and ObamaCare: How the Commerce Clause Made Congress All-Powerful
The Commerce Clause of the U.S. Constitution grants Congress the power to "regulate commerce . . . among the several States," and for more than 100 years federal lawmakers invoked it for a very narrow purpose—to prevent states from imposing trade barriers on each other. But today members of Congress act as if it gives them the authority to do just about anything—including forcing you to eat your vegetables.
During her Supreme Court confirmation hearings, Elena Kagan seemed to accept that the Commerce Clause could, in theory, give Congress the power to dictate what Americans eat. And what about ObamaCare's "individual mandate," which forces Americans to purchase health insurance? ObamaCare opponents are lining up to challenge its constitutionality, but supporters say it's justified—you guessed it—under the Commerce Clause.
How did a clause intended as a restriction on states wind up giving Congress a green light to regulate noncommercial, local, and purely private behavior? How will ObamaCare stand up against the legal challenges brought by the states? Legal titans John Eastman (Chapman University Law Professor) and Erwin Chemerinsky (Founding Dean, University of California, Irvine School of Law) slug it out to to determine whether or not Congress has been abusing the commerce clause.