More on “Wheat, Weed, and ObamaCare”

Judge Roger Vinson calls the Affordable Care Act unconstitutional, citing (among other things) this ReasonTV video.

I am now an adjunct fellow of the Century Foundation. I will be posting occasionally at their very nice website, Taking Note. I posted something there yesterday on Judge Vinson’s surprisingly strident decision seeking to strike down the entire Affordable Care Act. I will let the actual lawyers analyze the substance of Vinson’s decision. I do want to note his tone and argument, exemplified by this ReasonTV video cited in his decision. For more, see my Century Foundation post.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect,, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

8 thoughts on “More on “Wheat, Weed, and ObamaCare””

  1. What rot. When these guys read Gibbons v. Ogden and McCulloch v. Maryland, then we can have a discussion. The commerce clause is near plenary in its scope and power. In other words, it is near absolute to that extent. That was the intent of the Framers, the true Federalist ones anyway. Read also Federalist Paper no. 10 (before Madison started down a states’ rights path the moment Quakers introduced legislation to limit or outlaw slavery). In no. 10, Madison expressly says the principal task of “modern legislation” (in 1788 he’s writing that!) is to regulate different economic interests. Chapman Law School prof John Eastman is wrong to limit the word “commerce” in the way he does in the video (which I admit to stop watching halfway through). He is an anti-Federalist, and his favorite years of the Supreme Court are the Gilded Age Supreme Court in terms of his economic world view.

    The problem with Chemirinsky is he fails to grasp that the original intent of the Framers is precisely the need for flexibility and a broad scope of national power. And that the words used in the Constitution are largely elastic because the Constitution was itself the product of compromise and its purpose was to create a national government to last for posterity. Federalist Paper no. 37, again by Madison, said as much about the vagueness of the terms used.

    So now one more time for those too slow to grasp this:

    The only limits on the commerce clause are (a) ex post facto, (b) bills of attainder and (c) irrationality (the “rational relation” test identified in Gibbons. Otherwise, as Marshall said in McCulloch or Gibbons (I don’t have either in front of me right now), people can vote the rascals out of the US Congress if they don’t like what’s legislated.

    Thus, the individual mandate (which I personally and legislatively do not like at all) is constitutional. It is a rational method of giving some protections to insurers when the rest of the legislation requires the insurers to accept people with pre-existing conditions. QED.

  2. Other limits on the Commerce Clause are provisions of the Constitution that protect rights, most notably the First Amendment. It is best to consider the constitutionality of a statute or other governmental action in two steps: (1) does it fall within an enumerated power, such as the Commerce Clause, and (2) if it falls within an enumerated power, does it violate any provision, such as the First Amendment?

  3. Henry,

    You are correct, though I should have been more clear, perhaps, in talking about economic regulation. Plus, the right wing and libertarian zealots don’t really want to talk about the 1792 Militia Act, or the Sailor’s Act of 1797 that would have allowed federal tax dollars to subsidize private, and not simply public, port hospitals.

  4. Strictly speaking, shouldn’t the 10th amendment count as “any provision”, and preclude the N and P clause from being interpreted to permit the exercise of powers not delegated?

  5. Brett, it doesn’t in reality, and I’ll leave it to others to consider whether it does “strictly speaking.” But your question reminds me of another limitation on the Commerce Clause, which, unlike the First Amendment, has nothing to do with rights: Congress cannot “commandeer” state officials to enforce federal law.

  6. Brett: Don’t you get into just a little bit of circular reasoning there? If you think something falls under “Necessary and Proper”, then it’s already been delegated. If not, then not.

  7. The problem the advocates of the 9th and 10th Amendments have is that event known as the Civil War and the subsequent enactment of the 14th Amendment. When people have rights as citizens of the United States, it has profound implications that restore the Federalists’ worldview. And if the Civil War was about anything other than slavery, it was about the Federalists prevailing over the “states’ rights” crowd. I know the “states’ right” crowd did better after the Compromise of 1876 and the Gilded Age that was on its heels, but that only means the New Deal is a restoration of the Federalist position, not a new and illegitimate change.

    My point beyond the moment of the individual mandate argument is that too many constitutional law professors are weak historians, and the Constitution is bound up in our nation’s history. That point drives Scalia the texturalist crazy, but Scalia, as we know, suddenly loves to use history when it suits him, as in Heller and Lee v. Wiseman (a school prayer case from the early 1990s, where Souter, in a concurring opinion, schooled Scalia rather well).

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