10A101 A Bit Healthier by Jim Davies, 12/14/2010    

On September 24th the ZGBlog Seriously, Nancy observed that the House Speaker had arrogantly dismissed a reporter's good question about what part of the US Constitution authorizes Congress to compel individuals to purchase health insurance. Her rudeness was mollified a little, later, by her aide - who said the answer lay in its "interstate commerce clause."

Yesterday Henry Hudson, a Federal Judge in Virginia, contradicted the aide; and he has a bigger hammer. He was rather clear: "Neither the Supreme Court nor any federal circuit court of appeals has extended commerce clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."

The immediate result will be usefully to undermine "Obamacare", but it's worth noting that the progress made is very minor. Observe how he phrased his ruling; he said that no higher court had "extended" the clause in such ways; no doubt he's right, but the fact that he said it that way means that if a higher court had wanted to extend the clause, it could have done so. And it might yet do so, in the future. In other words, courts make law.

Notice what the Commerce Clause says: The United States Congress shall have power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

That's it. Even if the Constitution had validly granted the Feds any powers at all (it didn't) the powers here granted in Article I, Section 8, Clause 3 have to do with regulation of commerce between the States, Indians and foreign nations. So Judge Hudson could better have said that the Clause is altogether unrelated to how Americans pay for health care, and he'd have been right. But in that case, a whole raft of intrusive laws enacted during the last century and more would have had to have been flushed away also, and it seems he didn't want to touch that hot potato. Nobody relinquishes power, while an alternative remains.

So let's fill in the missing bits, and show how the Judge might have ruled.

  1. The US Constitution doesn't validly grant any powers at all, see Constitutional Humbug
  2. Even if we suppose otherwise, Article I 8 Clause 3 bears no relation to health care
  3. That clause bears no relation either to any laws enacted in its name during the last century
  4. All those laws are therefore hereby declared void

That would still have fallen way short of a zero government society, but it would have set a whole clutter of cats among the pigeons, and so been somewhat healthier yet.

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