Obamacare opponents, don't pin your hopes on lawsuits

Lawsuits have already been filed by several state's attorneys general asking that the new healthcare reform law be found unconstitutional on two grounds, both based on the 10th amendment, which reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The first complaint is that the federal government has no authority to regulate strictly intrastate commerce, only interstate commerce, and health insurance is intrastate only; one can only buy health insurance from a company licensed in the state in which you live- there is no interstate commerce in health insurance. The second complaint is that the Constitution grants the federal government virtually no powers over the individual citizen, leaving such things to the states; therefore, the federal government has no authority to require that an individual citizen buy an insurance policy from anybody.

These might seem reasonable arguments to the layman- especially that second one. That the Constitution grants few powers over the citizen is undeniable; there's not even a federal law against murder. (Unless the murder occurs on federal soil or the victim is a government employee, or it is an act of high-seas piracy, all of which are reasonable areas of government interest) The federal government wasn't even allowed to tax a citizen for over a hundred years; it required a constitutional amendment to give it that power. The language of the 10th amendment seems quite clear on this.

But that was then; this is now. Today, we live in a post modern, Alice In Wonderland world where words mean what we say they mean, and dictionaries be damned. "Interstate Commerce" no longer means what a dictionary might say that it means; this was established in WICKARD v. FILBURN, 317 U.S. 111 (1942). In that case, a farmer had been charged with growing more wheat than the Agricultural Adjustment Act of 1938 allowed. The farmer claimed that the wheat had not been sold, it had been used to feed his own family; no commerce was involved. Since the Agricultural Adjustment Act dealt with commerce, and none had occurred, it wasn't any of the government's business what his family ate. To counter this seemingly reasonable argument, the court invented a new legal doctrine called "Total Incidence", which in layman's terms means "What if everybody did that?" If everybody grew their own wheat to eat, that would depress the price of wheat, which would have an affect on the whole wheat market; therefore the bread on his table, despite having been neither sold nor bought, was involved in interstate commerce.

The irrationality of this argument means nothing to the law. Of course "everybody" isn't going to grow their own; growing wheat is an expensive, difficult, time consuming process that few would undertake- that's why wheat farmers exist in the first place. Hells bells, I once killed an air plant. But I digress.

This bogus expansion of the commerce clause was taken a step further with GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al., 2005. In this case, the federal government overruled California's medical marijuana laws, which allowed citizens of California to grow marijuana for their own consumption. California argued that as there is no interstate commerce in marijuana, the commerce clause did not apply, so the 10th amendment rules. But, of course, there was no way such a reasonable argument was going to be allowed to stand.

The court said "The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market... Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions." Did you catch that? "fungible commodity" means something that can be transported, and doesn't have anybody's name on it. Which means that it's physically possible for a California cancer patient to carry his joint across state lines, and once there, sell it. So despite the fact that the smuggling and the resultant sale are both already illegal, he is, by the Wickard precedent, involved in interstate commerce, and the government has a legitimate interest in regulating the price and market conditions even of a market that has no legal existence. And inherent in the logic is the government's right to assume that capability implies intent; a new precedent in its own right, in my opinion.

To any rational person, this argument too is bogus. It is tantamount to saying that the Constitution gives the federal government the right to regulate your sex life because since you can carry your genitals across state lines, you might then indulge in a little prostitution, which would then be interstate commerce. But again I digress.

Those who have filed the lawsuits against the new healthcare law are arguing that neither Wickard nor Gonzales apply, as health insurance is not a fungible commodity- you can't carry a blank policy across state lines, sell it, and the buyer then be able to use it. The counterargument is that since we are a mobile society, if your state doesn't offer a policy you like you can move. By "Total Incidence", this would affect the insurance policies in all the other states, and so Wickard applies.

I find this logic very, very dangerous. If you can stretch the commerce clause that far, than everything is a federal issue; the 10th amendment is dead. The raison d'etre for our (formerly) weak federal system, and the 10th amendment, was so that we could vote with our feet. The Founding Fathers knew that national mistakes are, by their very nature, huge and difficult to reverse. (Does anyone remember Prohibition?) Their intent was that the individual states could experiment with policies, and the rest of the country could wait and watch to see if it was a good idea; they called this concept the Laboratories of Democracy. If California passes a lot of foolish policies, Indiana does not suffer for them; if Idaho prospers, Indiana can learn from it. That way, the whole nation would not fall from one bad decision.

So which argument will the Supreme Court buy? I've noticed that in lawsuits against the government, there is a strong element of what I call the "Lola" factor. (Whatever Lola wants, Lola gets...) Look at Eminent Domain. In the past, the "compelling public interest" for Eminent Domain was things like roads, (and postal roads are specifically mentioned in the Constitution), bridges, military installations. Today, your land can be taken away from you and given to Wal-Mart if they are capable of paying more in property tax than you are- snatching up great honking wads of cash are now a "compelling public interest", sufficient to override your rights as a citizen. Same goes for forfeiture laws; we've had cases of cars used in a crime confiscated by the state even when the perpetrator did not own the car, and did not have permission to drive it- the GHWOC doctrine applied.

I have no great faith in the Supreme Court's commitment to individual rights or the text of the Constitution. One former Justice actually admitted that in some decisions, they had started from what they wanted the decision to be, then worked backwards to try and find a legal justification for it. Some call that liberal; some call it a violation of their oaths. Will the court find any emanations of the penumbra of the 10th amendment in the healthcare case? It could happen, but I'm not betting the rent on it.