Weighing Our Healthcare Arguments

ThinkProgress properly nails the chance that the Supreme Court will ever overturn our new healthcare reform act — 1% or less — but it improperly relies on Gonzales v. Raich, 545 U.S. 1 (2005).

Raich follows a long line of cases, some which were a little crazy, that allow Congress to aggregate intrastate economic effects to create a regulable interstate economic effect.

To unpack, the problem Raich solves is this: the Commerce Clause lets Congress regulate inter-state commerce. But what about purely intra-state commerce that creates tangible spillover effects, somehow endangering inter-state commerce? Under Raich and its predecessor, Wickard v. Filburn, 317 U.S. 111 (1942), those become regulable if the Supreme Court is convinced they’re a big enough deal… and it helps if regulating the spillover constitutes a necessary part of a comprehensive congressional scheme.

So that’s cool. But targeting purely intrastate activity isn’t a problem that the healthcare act has, and it’s not one being alleged in any of the absurd lawsuits now pending.

Targeting purely noneconomic activity isn’t a problem the act has either — so Morrison and Lopez are way off, too.

What our enemies don’t get, and what our friends don’t seem to get, either, is that this act implicates none of the traditional limitations on the Commerce Clause power. Think of this as a national bank — a really expansive use of the power to regulate interstate, economic activity, but nothing more.

Incidentally, that’s also why the states can’t tax this away. That’s been tried before. See McCulloch v. Maryland, 17 U.S. 316 (1819).



  1. I was surprised and embarassed to learn that my state’s (Colorado) AG is one of the fools fighting the legislation. There seems to be a good deal of backlash here against him, though.

  2. I’m trying to think of an element in that line of cases Raich follows that wasn’t crazy. Seems to me everything’s been wrong since it abandoned the formalism of Schechter Poultry and the like. Formalism’s the only right way to judge.

  3. […] as an “unconstitutional” exercise of federal power. I’ve explained before why this is a far-fetched argument, but it’s made all the more absurd given this apparent devotion to judicial modesty. One […]

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