The reason was clear enough. Everyone realized that Champion did not overrule E. The expansionist agenda of Congress came to a temporary halt, moreover, in Hammer v. Dagenhart , where the Court refused to extend Champion. It barred Congress from prohibiting the shipment in interstate commerce of goods made in factories that did not conform to the federal minimum age standard for child labor.
Once again, it was clear that Congress could not use its power over interstate commerce to control activities that were reserved to the states under the original constitutional scheme. Since, moreover, direct regulation was off-limits to the federal government, so too was taxation. In , the Child Labor Tax cases held that Congress could not seek to pressure the states by taxing all goods made with child labor that were shipped in interstate commerce.
The basic constitutional structure held firm. The dominance of E. Knight is also evident in the text of the 18th and 21st Amendments, the former introducing prohibition in and the latter repealing it in The 18th Amendment thus prohibited the manufacture, sale, or transportation of intoxicating liquor, which thus covered the full gamut of activities at the federal and state level.
But when the 21st Amendment repealed prohibition, it did not mention manufacture. Instead, section 2 reads as follows:. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. This amendment does not apply to all activities but only to the transportation or importation of intoxicating liquors, and only with respect to those states that chose to remain dry.
The only way that this provision is intelligible is against the backdrop that the federal government could not by legislation either prohibit or authorize the manufacture or sale of intoxicating liquor, both of which remained exclusively local options. But once those options were exercised to keep a state dry, then Congress was duty-bound to prohibit transportation or importation, which were of course the only powers that it had under the Commerce Clause to begin with.
Finally, as late , the Court in Schechter Poultry v. Then the dam broke. In , in National Labor Relations Board v. Four years later, U. And, finally, in Wickard v. For decades the received wisdom was that under Wickard , the Commerce Clause gave Congress a carte blanche.
That consensus was rudely shattered in when in United States v. Lopez , Chief Justice Rehnquist, writing for a narrow five-to-four majority, struck down the Federal Gun-Free School Zones Act that forbade carrying a gun within 1, feet of a school.
The opinions in Lopez v. Judge Silberman dutifully treated Wickard as the lodestar against which ObamaCare should be decided, only to note the case gives no particular guidance on the question of whether individual inaction can be regulated. He rightly concedes that no act of Congress has ever attempted to regulate this form of pure inaction, but then notes that by the same token, no judicial decision has said that these forms of inaction could not be regulated.
In his position as a lower court judge, he is entitled to kick the case upstairs, because his is the unhappy task of making sense of an elaborate line of Supreme Court cases that have never really grappled with the issue. The situation on the ground is quite the opposite. The National Labor Relations Act, for instance, did not solve any national problem when it introduced a regime of mandatory collective bargaining into all employment relations throughout the United States.
Nor did the Agricultural Adjustment Act of , which was sustained in Wickard , solve any national problem when it authorized the Department of Agriculture to initiate a system of nationwide cartels for the allocation of various crops.
To be sure, it solved the problem of how labor and agricultural interests could monopolize large segments of the economy. And such will be the case with ObamaCare should it be sustained on this point. The last thing that this nation needs is a national solution to a problem that is better solved in a piecemeal way by the states, whose ability to dole out goodies is limited by the competition that they face from other states.
The United States Supreme Court should confess error and acknowledge that its past decisions are bad both as a matter of constitutional history and constitutional theory.
The Court should do its best to not compound the error by extending an imperial version of the commerce power into new areas where it has yet to go, and which, as Judge Silberman acknowledges, are conceptually distinguishable from every legislative initiative that the federal government has taken to date. By refusing to extend an indefensible line of cases, it could do much to prevent the massive disruption of the health-care system that will follow, as the night follows the day, with the implementation of the convoluted provisions of ObamaCare.
National problems require not authoritarian national solutions, but a healthy dose of interstate competition that the Commerce Clause was intended to facilitate. View the discussion thread. Illustration by Barbara Kelley. About the Author. Communication Law. It can be collected only from over-withheld income taxes. It does not apply to many people—for example, those for whom the cost of insurance would exceed a certain share of income.
In brief, the incentive to carry insurance is largely hortatory for many people. The argument over whether or not the power to regulate interstate commerce authorizes the requirement to carry insurance is therefore important only because of its implications for federal legislation other than the Affordable Care Act.
And it is important. Justice Thomas dissent underscores why. Although he wrote only for himself, he articulated a position, popular in the conservative legal community, that the power to regulate interstate commerce should be drastically curtailed. The other conservative members of the court were unwilling to sign on to his rather extreme position.
But they were nothing if not clear that the assertion of power to regulate interstate commerce under the Affordable Care Act is major legislative overreach.
For seventy years, the Court placed few and minor limits on the power of the government to regulate economic activity under the Commerce Clause. This case suggests that this permissive era is over. With respect to the extension of Medicaid coverage, seven members of the court, including two justices usually counted as liberals—Breyer and Kagan—ruled that it would be unconstitutional to penalize a state that refused to extend Medicaid coverage by curtailing current Medicaid matching funds.
Eberly and James H. Stock The reasoning is bewildering. Medicaid, it was argued, is so important to every state that curtailment of current matching funds would dragoon states into extending coverage. Under the Constitution, it is the states that are sovereign and grant only limited powers to the federal government. No action by the federal government can convert the states into unwilling instruments of federal purpose.
Yet it seems clear that the federal government could have taken two legislative steps, both clearly constitutional, that in combination would have been equivalent to the Affordable Care Act. The second step would be to enact a new title XIX, creating a new Medicaid program with exactly the coverage requirements in the Affordable Care Act.
States would be free to join the new Medicaid program or not, as they chose. There could be no constitutional bar to the repeal of a law Congress duly enacted. Nor would the terms of the new Medicaid law be any different from those of the old Medicaid law, which states were free to join or not to join one state, Arizona, remained outside the program for many years. In combination, these two legislative steps, each doubtlessly constitutional, would have done precisely what seven members of the Court decided the Affordable Care Act could not do—tell states that if they did not extend coverage as specified in the Affordable Care Act, they would lose current Medicaid funding.
The tone as well as the substance of the three major opinions—by the chief justice, Justice Ginsburg, and the joint dissent of Kennedy, Alito, Scalia, and Thomas—is striking. Justice Ginsburg attacks the opinion of the chief justice with brio and scorn. Henry J. Consider the chain of inferences the Court would have to accept to conclude that a vegetable -purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans.
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