Health Care Law: Have BOTH Sides Missed this?

I thought the commerce clause dealt with interstate commerce. I know the old 1930s ruling that is really in question here deals with regulating a product that “could” affect interstate commerce had it actually been sold – or because it wasn’t. But – unless I missed something – no one seems to have noticed that health insurance does not fall under the commerce clause because we are not allowed to buy and sell health insurance across State lines. So, like those companies and States getting around Federal gun laws because they manufacture and sell only within their State, health care insurance is actually outside Federal authority for the same reason. Why hasn’t this been mentioned? I’m not a lawyer, but this would seem to be a slam-dunk beat down against the question of the constitutionality of Obama care.


And then there’s the matter of the clear and specific record of what our founders had to say about government spending on public welfare programs. From the leader of the Federalists, the winning side of the debate over how the constitution was to be understood and exercised:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
–James Madison, Federalist No. 45, January 26, 1788


“What is to be the consequence, in case the Congress shall misconstrue this part [the necessary and proper clause] of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in a last resort a remedy must be obtained from the people, who can by the elections of more faithful representatives, annul the acts of the usurpers.”
–James Madison, Federalist No. 44, January 25, 1788


“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
–James Madison


“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.”
–James Madison, 1792, in disapproval of Congress appropriating $15,000 to assist some French refugees


“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”
–James Madison, letter to Edmund Pendleton, January 21, 1792


“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”
–James Madison, referring to a bill to subsidize cod fisherman introduced in the first year of the new Congress


“In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature.”
–James Madison, Federalist No. 52, February 8, 1788


And from the leader of the Anti-Federalists, agreement with the winning argument from the Federalists:


“The construction applied…to those parts of the Constitution of the United States which delegate Congress a power…ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument.”
–Thomas Jefferson, Draft Kentucky Resolutions, 1798


“It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. Certainly no such universal power was meant to be given them. It [the Constitution] was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.”
–Thomas Jefferson, Opinion on a National Bank, February 15, 1791


And to the fallacious notion that the constitution can and should be changed by interpretation based on the equally fallacious argument that changing times and technology have mandated such an action:


“[T]he true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law.”
–Thomas Jefferson, letter to Albert Gallatin, May 20, 1808


In short, there is no authority in the Constitution to mandate commerce – especially commerce that – by law – cannot be conducted across State lines. Secondly, even were health care commerce to cross State lines, there is no authority in the constitution to spend public money on public health care. In fact, the founders were quite clear: there is no authority in the constitution for the federal government to spend public money on any program of public welfare. This includes social security, Medicare and Medicaid, as well.

5 thoughts on “Health Care Law: Have BOTH Sides Missed this?

  1. That’s the crux of the whole debate in front of the Supreme Court (as argued on day 2).

    It is also something Oblamer knows, and why he is currently posturing to the courts in an attempt to strong arm them on their ruling.

    • Is it? I ask honestly because I understood the govt. is arguing the same way they did in the 1930’s case. But at least in THAT case they could pretend that wheat grown but NOT sold in one State could effect the markets across the nation (stretching silly putty past the breaking point, but…). HOWEVER, in this case, they CANNOT make that argument because – by law – there is no interstate “health care” commerce. So they can’t even invoke the commerce clause – let alone argue how to apply it.

      In this case, they can’t even get out the starting gate because there isn’t even an imaginary transaction or even a “could be” imaginary transaction between States. Do you see my point?

      THAT is what I have not heard anyone mention yet – unless I missed it.

    • Thanks, but, as I say, I could be wrong about this…but I don’t believe I am – not according to the way the founders told us to read laws according to the plain meaning of the words and original intent (spirit) of the legislators.

  2. can someone send this to the seven judges, I count sotomayor and kagan as buffoons of the usurper,
    and Bader-Ginsberg NEEDS to be enlightened

Talk Amongst Yourselves:

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.