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Health-Care Reform and the Constitution

By Andrew P. Napolitano
WSJ.com

Last week, I asked South Carolina Congressman James Clyburn, the third- ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

Rep. Clyburn, like many of his colleagues, seems to have conve­niently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress's powers only to those granted in the Con­stitution.

One of those powers-the power "to regulate" interstate commerce-is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control.

Unfortunately, a notoriously tendentious New Deal-era Su­preme Court decision has given Congress a green light to use the Commerce Clause to regulate noncommercial, and even purely local, private behavior. In Wick­ard- v. Pilburn (1942), the Su­preme Court held that a farmer who grew wheat just for the con­sumption of his own family vio­lated federal agricultural guide­lines enacted pursuant to the Commerce Clause. Though the wheat did not move across state lines-indeed, it never left his farm-the Court held that if other similarly situated farmers were permitted to do the same it, might have an aggregate ef­fect on interstate commerce.

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madi­son's understanding was the commonly held one in 1789, since the principle reason for the Con­stitutional Convention was to es­tablish a central government that would prevent ruinous state-imposed tariffs that fa­vored in-state businesses. It would do so by assuring that commerce between the states was kept "regular."

The Supreme Court finally came to its senses when it invali­dated a congressional ban on il­legal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to reg­ulate human activity that is truly commercial at its core and that has not traditionally been regu­lated by the states. The move­ment of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state func­tion.

Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medi­cine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services oc­curs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution un­derstood, but to improve one's health. And the practice of medi­cine, much like public school safety, has been regulated by states for the past century.

The same Congress that wants to tell family farmers what to grow in their backyards has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barri­ers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in an­other state.

That's right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix beca:use that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political pur­poses. The president and his col­leagues want to reward their supporters with "free" health care that the rest of us will end up paying for. Their only re­straint on their exercise of Com­merce Clause power is whatever they can get away with. They aren't upholding the Constitu­tion-they are evading it.

Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judi­cial analyst at the Fox News Channel. His latest book is "Dred Scott's Revenge: A Legal History of Race and Freedom in Amer­ica" (Nelson, 2009).

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