- The Washington Times - Thursday, June 28, 2012

Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act go beyond those powers. We conclude that they do….

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the 10th Amendment ratified in 1791 and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power - upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign states. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the federal government to regulate all private conduct and to compel the states to function as administrators of federal programs.

That clear principle carries the day here. The striking case of Wickard v. Filburn (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

As for the constitutional power to tax and spend for the general welfare: The court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the federal government’s enumerated powers. Thus, we now have sizable federal departments devoted to subjects not mentioned among Congress‘ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the states is the sheer impossibility of managing a federal government large enough to administer such a system. That obstacle can be overcome by granting funds to the states, allowing them to administer the program. That is fair and constitutional enough when the states freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the states have no choice.


The act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting states all Medicaid funding. These parts of the act are central to its design and operation, and all the act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.

The Washington Times