Pelosi and Scalia: The Strangest Of Bedfellows

November 23, 2009

The other day I read an article about the constitutionality of government run health care.  It remains to be seen whether the Supreme Court will deem a government run health care system constitutional, but the answer doesn’t seem as obvious as Ms. Whalen- Cohen thinks it is.

Article 1, Section 8 of the constitution sets out with specificity the powers granted to congress. Creating a national health care system is not one of those powers.  However, Congress is granted the right to regulate interstate commerce.  That power is contained in Article 1, Section 8, clause 3, and reads as follows:

“The United States Congress has the power to regulate commerce with foreign nations, among the states, and with the Native American tribes.”

So, what does this mean? Nancy Pelosi addressed this question recently, saying  “Since virtually every aspect of the health care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.”    Conservatives would ordinarily be outraged  by this blunt assertion of almost unbridled federal power, except for the fact that their champion, Supreme Court Justice Antonin Scalia has helped pave the way for this audacious proclamation.

That’s because of Gonzalez v. Raich, a 2005 case in which Scalia decided with the majority in upholding a federal ban on medical marijuana. The Court found the law valid, although the marijuana in question had been grown and consumed within the borders of a single state, and had never entered interstate commerce.  The Court held that  “Congress may regulate a non-economic good, which is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce.”

Under the Gonzales v. Raich holding, Congress appears to have the power to regulate just about any economic activity, whether it be the medicinal use of marijuana or an entire health care system.  Conservatives who agreed with Scalia  in Gonzales v. Raich  may rue the day they allowed their ideology to trump their belief in a limited government.

Justice Clarence Thomas dissented, writing “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

Thomas went on to say that “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

Perhaps the best constitutional argument against the proposed new health care system avoids the commerce clause altogether, and focuses on privacy rights post Roe v. Wade.  This article in the Wall Street Journal quotes language from the majority decision in Planned Parenthood v. Casey: “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

Go figure. The best conservative argument against government run health care may be from a Supreme Court case upholding a woman’s right to choose an abortion.  Maybe that’s as it should be.

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