Abusing But Not Using the Constitution

When asked what constitutional justification there is for federal health care reform, House Speaker Nancy Pelosi’s office cited the Commerce Clause:

The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states… or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. 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.

The irony of all this – as Cato chairman Robert Levy pointed out today at the State Policy Network conference – is that Congress is not using the commerce clause for the one thing for which it was intended. The clause was intended to prevent states from imposing tariffs and other barriers to trade with other states. In terms of health care, an appropriate exercise of this power would be striking down state bans on the purchase of insurance across state lines. Of course, this one reform is absent from what President Obama and Congress are proposing.

A recent Wall Street Journal column made a similar point.

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