Sunday, April 20, 2014
Notes on Obamacare's Unconstitutionality and Interstate Commerce
Written on May 12th, 2012
Edited in April 2014
The Interstate Commerce Clause (Article I, Section 8, Clause 3) of the U.S. Constitution reads:
[The Congress shall have Power] "to regulate Commerce... among the several States...".
In my opinion:
#1. "Regulate" should not be construed as identical to "legislate on" or "prescribe the rules for governing"; but rather "keep regular"; i.e., uninhibited, uninterrupted, and uncontrolled.
#2. The purpose of the Clause [hereafter referred to as "the I.C.C."] is to prevent trade wars between the states. This has the effect of:
(a) turning the nation into a free-trade zone, and
(b) preventing state governments from pandering to the industries and businesses within their claimed territorial jurisdictions by protecting them (explained in #5).
#3. It is intended that the I.C.C. accomplish the goals outlined in #2 by giving the federal government the power to prevent and reverse the creation of protectionist barriers or impediments to free trade across state borders.
#4. "Trade" should be construed as identical to "commerce", which has been held by the U.S. Supreme Court to mean "intercourse", including traffic and navigation. A dictionary from the 1790s defines the verb "commerce" as "to hold intercourse", which includes interchange and exchange. I feel that "intercourse" should also be construed to include the transportation of goods (and services, for which there is less precedent).
#5. State-upheld protectionist measures which are (and ought to be) prohibited by the I.C.C. include:
(a) bans on the manufacturing of goods for shipment across state lines [Kidd v. Pearson] Note: In discussing contraception, Ron Paul stated that any good whose importation cannot be banned when it crosses state lines also cannot be completely banned within the state. I am not aware of any precedent or statements by the founders that would support this claim.
(b) tariffs, tolls, and other taxes [the Federalist Papers]
Note: I feel that the I.C.C. should also prevent quotas, but in Wickard v. Filburn, the U.S. Supreme Court ruled against this. I am not aware of any case that could be cited as precedent for invalidating quotas on I.C.C. grounds.
(c) exclusive monopolies [Gibbons v. Ogden]
Note: The properness of the Patient Protection and Affordable Care Act (P.P.A.C.A.; "Obamacare") seemed to be predicated on the notion that health insurance companies should be required to compete across state lines. Indeed, it seems that this is the only legitimate constitutional portion of Obamacare, the constitutionality of whose remainder seemed to have been glossed over and defended by strawman arguments and emotional appeals.
However - although this interstate competition appears (at first glance) to be a perfectly constitutional objective which merits involvement pursuant to the I.C.C. - I am not aware of any private company which was granted a state-upheld exclusive monopoly on the sale of health insurance. Taking this information (if accurate) into account, it seems that this situation alone would truly merit federal involvement.
Being that "exchange" (a form of commerce) includes purchase as well as sale, a state-upheld exclusive monopoly privilege to sell something like health insurance should be construed to be just as unconstitutional (and in violation of the I.C.C.) as a state-upheld exclusive monopoly privilege to buy health insurance.
I once invoked the 10th Amendment (states' rights) to defend the Kucinich Amendment to Obamacare (which permits each state to form a single-payer health insurance system). However, such systems conflict with the I.C.C. because they are state-upheld exclusive monopoly privileges to purchase (that is, monopsonies).
Thus, it appears clear - at least to me - that:
(1) there is absolutely no I.C.C.-supported Constitutional precedent - or even necessity - for Obamacare
(2) there was plenty unconstitutional about the health insurance industry before Obamacare
(3) several portions of Obamacare are unconstitutional.
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