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

(page 2 of 2)

The Founders couldn’t have imagined a world where millions of lives are saved by cardiac surgery and chemotherapy. Nor could they have imagined an America where close to 45,000 people die each year because they lack health insurance, as documented in a 2009 Harvard Medical School study. Considering that all five conservative justices are devout Catholics outspokenly devoted to the right to life, the stakes in this case might lead at least some toward the more expansive reading of the commerce clause.

The ambiguity of the commerce clause has long made it a nifty hook for letting the federal government do all sorts of things the Founders hadn’t thought of. As liberal Justice John Paul Stevens wrote in the 2005 marijuana ruling, the commerce power has been expanding steadily since the 1880s to cope with “rapid industrial development and an increasingly interdependent national economy.” It’s been used to break up monopolies, pave highways, outlaw unsafe toys and, most famously, prohibit racial segregation in businesses that serve the public.

What it’s never done, to hear Obamacare opponents tell it, is force anyone to do something they weren’t doing. Not participating in commerce — not buying insurance, for instance — isn’t an act of commerce and can’t be regulated, they say.

This would come as a surprise to thousands of railroad and airline workers who’ve been forced to go to work when they wanted to stay out on strike over the decades since the 1926 Railway Labor Act was passed. Chief Justice Warren Burger usefully explained in his 1982 United Transportation Union v. Long Island Rail Road Co. decision how the commerce clause can make people do things they don’t want to do. Ronald Reagan offered a live demonstration a year earlier when he fired 11,000 striking air traffic controllers. You didn’t hear a lot of conservatives complaining back then.

Since then, though, an increasingly conservative court has been steadily gutting the commerce clause, insisting on the Constitution’s “original intent.” Among other things, it’s struck down laws banning handguns in schools and letting rape victims sue their attackers — both in 5-4 decisions.

Expecting otherwise this time might be a triumph of hope over experience, to quote Dr. Johnson again. This is a court that decided 5-4 to stop counting votes in 2000 and make George W. Bush president. That decided 5-4 in Citizens United to quash a century-old ban on corporate campaign spending. It’s a court led by movement conservatives, not judicial ones.

Escape clauses like interstate commerce are an ancient judicial tool for overriding Founders’ original intentions. Even God wasn’t exempt; the sages of the Talmud told Him directly that his intent wasn’t binding because once he gave the Torah to humankind it was, quoting (or deliberately misquoting) Deuteronomy 30:12, “not in heaven.” And yes, they used it to rewrite numerous troubling biblical laws, from executing rebellious children to amputating errant hands, eyes and teeth. Alas, that sort of flexibility is as scarce these days in rabbinic courts as federal ones. Maybe they’ve been putting something in those black cloaks.

Contact J.J. Goldberg at goldberg@forward.com


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!
  • Jon Stewart responds to his critics: “Look, obviously there are many strong opinions on this. But just merely mentioning Israel or questioning in any way the effectiveness or humanity of Israel’s policies is not the same thing as being pro-Hamas.”
  • "My bat mitzvah party took place in our living room. There were only a few Jewish kids there, and only one from my Sunday school class. She sat in the corner, wearing the right clothes, asking her mom when they could go." The latest in our Promised Lands series — what state should we visit next?
  • Former Israeli National Security Advisor Yaakov Amidror: “A cease-fire will mean that anytime Hamas wants to fight it can. Occupation of Gaza will bring longer-term quiet, but the price will be very high.” What do you think?
  • Should couples sign a pre-pregnancy contract, outlining how caring for the infant will be equally divided between the two parties involved? Just think of it as a ketubah for expectant parents:
  • Many #Israelis can't make it to bomb shelters in time. One of them is Amos Oz.
  • According to Israeli professor Mordechai Kedar, “the only thing that can deter terrorists, like those who kidnapped the children and killed them, is the knowledge that their sister or their mother will be raped."
  • Why does ultra-Orthodox group Agudath Israel of America receive its largest donation from the majority owners of Walmart? Find out here: http://jd.fo/q4XfI
  • Woody Allen on the situation in #Gaza: It's “a terrible, tragic thing. Innocent lives are lost left and right, and it’s a horrible situation that eventually has to right itself.”
  • "Mark your calendars: It was on Sunday, July 20, that the momentum turned against Israel." J.J. Goldberg's latest analysis on Israel's ground operation in Gaza:
  • What do you think?
  • "To everyone who is reading this article and saying, “Yes, but… Hamas,” I would ask you to just stop with the “buts.” Take a single moment and allow yourself to feel this tremendous loss. Lay down your arms and grieve for the children of Gaza."
  • Professor Dan Markel, 41 years old, was found shot and killed in his Tallahassee home on Friday. Jay Michaelson can't explain the death, just grieve for it.
  • Employees complained that the food they received to end the daily fast during the holy month of Ramadan was not enough (no non-kosher food is allowed in the plant). The next day, they were dismissed.
  • Why are peace activists getting beat up in Tel Aviv? http://jd.fo/s4YsG
  • Backstreet's...not back.
  • 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.