By Republican Logic, What Else Is Unconstitutional?

CNN’s newest correspondent, Erick Erickson of RedState, offers this explanation of why the new healthcare act is unconstitutional:

Insurance contracts are not within the stream of interstate commerce. That’s why when you buy insurance for your house, your car, or your health you deal with state insurance commissioners, not a federal insurance czar.

Congress does not really regulate insurance contracts. They are contractual obligations at the state level, not goods and services in the stream of commerce. So can Congress then force you to buy a product not in interstate commerce to regulate interstate commerce, when insurance regulations are clearly within the purview of the states?

He goes on to argue that, a fortiori, this means that you’re now a slave. To a black man. Yeah, the rest of the article is worth a read, and it’s not race-baiting at all. Three cheers for intellectual integrity!

Anyways, try to parse the law from the rhetoric. It’s not easy, but Erickson’s argument seems to be that insurance contracts are regulated by the states, and therefore not “interstate”; and further, they’re not “goods,” and therefore not within the stream of commerce anyways, so neither do they constitute “commerce.” Let’s unpack and apply.

If state regulation rebutted the interstate quality of a good, nothing would be within Congress’ power. Most regulatory regimes consist of overlapping zones of federal and state power. For example, federal securities laws, like § 10(b) of the Exchange Act and its critical Rule 10b-5, coincide with state “Blue Sky” laws to create a regime for the punishment of fraud. None dispute that, despite state “Blue Sky” laws and strong state regulation, these financial products constitute “interstate”

In much the same way, “contractual obligations” are most certainly commerce, and comprise the greater part of the American economy. When I walk to work in the morning, I don’t pass factories: I pass securities clearinghouses, and the law firms that represent them. If you live in a city, you do too. These financial products enter the stream of commerce and have the potential to enrich, or wreak havoc on, the parties that control and are controlled by them. None dispute that they constitute commerce.

But under Erickson’s view of the Constitution, because they supplement or preempt state solutions, and concern neither goods nor services in the traditional sense, the Securities Act of ’33, the Exchange Act of ’34, and all related acts are flat-out unconstitutional.

Similarly, if you work for a large company, or state government, odds are your retirement plan is backed by the federal ERISA regime (Employee Retirement Income Savings Act). This is a good thing. It’s like an FDIC for your pension — at least in that it’s a safety net, and requires state-law plans to meet certain federal minima to guarantee solvency. Under Erickson’s logic, ERISA is gone too.

Erickson’s is not a responsible way of looking at the world. Going beyond these examples, Erickson’s reasoning would gut the Department of Labor — so long OSHA Occupational Safety and Health Act), FLSA (Fair Labor Standards Act), etcetera. That means a return to child labor, and a thousand new Triangle Shirtwaist incidents.

This is the world in which the newly mainstreamed, radical right wants you to live: a world where the Progressive Era and the 20th century never happened, where employees and families remain at the mercy of the unregulated market. The 1800s were not a happy time. We forget that at our peril, and repeat it at our pain.

CNN — fire this man.

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5 comments

  1. This is the world in which the newly mainstreamed, radical right wants you to live: a world where the Progressive Era and the 20th century never happened, where employees and families remain at the mercy of the unregulated market. The 1800s were not a happy time. We forget that at our peril, and repeat it at our pain.

    that’s exactly it. See, back then each man was. mostly, his own island, and there were individual winners and losers. Today, not so much.

    But more to the point, those conservatives want to go back to a day when (from their perspective) the world was UNDER CONTROL, instead of changing seemingly on its own.

    1. when (from their perspective) the world was UNDER CONTROL

      Just like their wives and black people.

  2. I don’t even get why they hired him in the first place.

  3. I think your history’s wrong. Didn’t a lot of the Progressive Era legislation occur at the state level? Cases like Lochner, after all, weren’t about Federal laws, so I think in the general case (this particular person may not apply) saying that opposition to nationwide regulation under an expansive commerce clause reflects a desire to revert to a pre-1890s absence of any regulation of health and safety.

  4. Mike from Ottawa · ·

    What a loonie Erickson is. And the commenters manage to achieve the feat of raising the lunacy to even greater heights.

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