Court Conservatives Take On Health Law

Commerce Clause Is Often Used To Regulate Markets

Arguing Obamacare: Paul Clement discusses the case against the health care reform act. The conservative majority on the Supreme Court seemed receptive to his argument that Americans should not be forced to buy insurance.
getty images
Arguing Obamacare: Paul Clement discusses the case against the health care reform act. The conservative majority on the Supreme Court seemed receptive to his argument that Americans should not be forced to buy insurance.

By J.J. Goldberg

Published March 30, 2012, issue of April 06, 2012.
  • Print
  • Share Share
  • Single Page

Like Charlie Brown and his famous football, various liberal legal scholars have been writing for weeks now that the Supreme Court just might transcend its 5-4 partisan divide and decide the fate of President Obama’s health care reform on the merits, not the politics.

It’s conceivable. Perhaps one or more of the conservative justices will side with the administration and let the health law stand, despite the obvious skepticism the conservatives displayed during the hearings on the law in late March.

True, the conservatives seemed unanimously hostile to the law’s central requirement that individuals buy health insurance. One after another, their questions suggested that it expands the government’s power to regulate interstate commerce far beyond what the Constitution intended. It’s a basic tenet of conservative judicial philosophy that we should read the Constitution as the Framers intended it and not reinterpret it to fit the fashions of the moment. And the Framers never mentioned health insurance.

Unfortunately for the administration, the power to regulate interstate commerce is the peg on which it’s hung the insurance mandate, and without it, the whole reform is in trouble. Many healthy people won’t buy insurance if they don’t have to. If so, sick people’s premiums will keep rising. The law’s most popular rules, like barring insurers from excluding pre-existing conditions, will become untenable.

But what if the Framers didn’t mean “commerce” the way we think? Samuel Johnson’s “Dictionary of the English Language,” our best guide to common usage in that era, defined it in 1792 as “interchange of any thing; trade; traffick.” He also offered a far more abstract meaning: “intercourse” (by which he meant human interaction in the broadest sense, not you-know-what). Which meaning did our Founders have in mind? Hard to say.

Even with the conservatives’ commitment to “original intent,” therefore, they could theoretically lean either way on requiring insurance. Take Justice Antonin Scalia. He was particularly skeptical of the mandate during the hearings. He asked sarcastically if the same logic could force individuals to buy broccoli as a way to regulate interstate commerce in food. And yet the same Scalia in 2005 endorsed federal regulation of another leafy green vegetable unmentioned in the Constitution. He was writing a concurring opinion in Gonzales v. Raich, which allowed Congress to override California’s medical marijuana laws. Regulating interstate commerce, Scalia wrote then, could include banning even “a noneconomic local activity” that does not “substantially affect interstate commerce,” if it helps “to make a regulation of interstate commerce effective.” The “relevant question” was whether Congress was acting “reasonably” to attain “a legitimate end under the commerce power.”

If barring Californians from growing marijuana in their bathtubs falls reasonably and legitimately under Congress’s commerce power, it’s hard to see how requiring individuals to buy health insurance doesn’t. Both laws stretch the federal government’s powers in ways the Founders never imagined in pursuit of social goals they hadn’t dreamed of: preventing marijuana use and saving lives through modern medicine.


The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.





Find us on Facebook!
  • Does #Hamas have to lose for there to be peace? Read the latest analysis by J.J. Goldberg.
  • This is what the rockets over Israel and Gaza look like from space:
  • "Israel should not let captives languish or corpses rot. It should do everything in its power to recover people and bodies. Jewish law places a premium on pidyon shvuyim, “the redemption of captives,” and proper burial. But not when the price will lead to more death and more kidnappings." Do you agree?
  • Slate.com's Allison Benedikt wrote that Taglit-Birthright Israel is partly to blame for the death of American IDF volunteer Max Steinberg. This is why she's wrong:
  • Israeli soldiers want you to buy them socks. And snacks. And backpacks. And underwear. And pizza. So claim dozens of fundraising campaigns launched by American Jewish and Israeli charities since the start of the current wave of crisis and conflict in Israel and Gaza.
  • The sign reads: “Dogs are allowed in this establishment but Zionists are not under any circumstances.”
  • Is Twitter Israel's new worst enemy?
  • More than 50 former Israeli soldiers have refused to serve in the current ground operation in #Gaza.
  • "My wife and I are both half-Jewish. Both of us very much felt and feel American first and Jewish second. We are currently debating whether we should send our daughter to a Jewish pre-K and kindergarten program or to a public one. Pros? Give her a Jewish community and identity that she could build on throughout her life. Cons? Costs a lot of money; She will enter school with the idea that being Jewish makes her different somehow instead of something that you do after or in addition to regular school. Maybe a Shabbat sing-along would be enough?"
  • Undeterred by the conflict, 24 Jews participated in the first ever Jewish National Fund— JDate singles trip to Israel. Translation: Jews age 30 to 45 travelled to Israel to get it on in the sun, with a side of hummus.
  • "It pains and shocks me to say this, but here goes: My father was right all along. He always told me, as I spouted liberal talking points at the Shabbos table and challenged his hawkish views on Israel and the Palestinians to his unending chagrin, that I would one day change my tune." Have you had a similar experience?
  • "'What’s this, mommy?' she asked, while pulling at the purple sleeve to unwrap this mysterious little gift mom keeps hidden in the inside pocket of her bag. Oh boy, how do I answer?"
  • "I fear that we are witnessing the end of politics in the Israeli-Palestinian conflict. I see no possibility for resolution right now. I look into the future and see only a void." What do you think?
  • Not a gazillionaire? Take the "poor door."
  • "We will do what we must to protect our people. We have that right. We are not less deserving of life and quiet than anyone else. No more apologies."
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.