- The Washington Times - Wednesday, December 29, 2010

Congress has used the Constitution’s Commerce Clause to fight prostitution and domestic violence, to break monopolies and to combat segregation — but its biggest test could come over the Obama administration’s claim that it can compel individuals to buy health insurance.

A federal judge earlier this month struck down part of the new health care law on the grounds that Congress had stretched the Commerce Clause too far. Other federal courts, though, have upheld the law, and its fate is certain to be decided eventually by the Supreme Court.

The battle is just the latest in a long line of showdowns over the clause. While some see it as a critical tool to give power to the most important pieces of legislation, others believe Congress has applied it too broadly.

“It’s kind of gone from being broadly interpreted to narrowly interpreted, to broadly being interpreted again and then narrowly interpreted,” said Robert Langran, a Villanova University political science professor who specializes in constitutional law. “And now, who knows?”

Found in Article I, Section 8, Clause 3, the Commerce Clause gives Congress the power “to regulate commerce … among the several states.” In its infancy, Congress used the power to build interstate roads, but has since expanded its claim of authority to target social ills such as human trafficking, segregation and, now, the uninsured.

In defending the new law, the Obama administration says that everyone will eventually need health care and caring for the uninsured affects all aspects of health care, so requiring residents to buy coverage is a way to regulate that market.

The government makes other arguments, too. It insists Congress’ taxing powers or the Necessary and Proper Clause, also known as the “elastic clause” because of its vague but broad grant of powers, can be used to justify the health care law.

Still, the Commerce Clause remains the chief battleground, and on Dec. 13, U.S. District Judge Henry E. Hudson ruled against the government and in favor of a suit brought by Virginia’s attorney general that challenged the “individual mandate” to buy coverage.

“An individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of Commerce Clause,” Judge Hudson wrote.

At least by one reckoning, the Commerce Clause is the reason the Constitution was written in the first place. Maryland and Virginia were trying to settle rights to the Potomac River under the old Articles of Confederation, and their efforts led to the Annapolis Conference that called for a convention to be held in Philadelphia in 1787.

Steven Schwinn, a professor at John Marshall Law School, said he breaks the history of the Commerce Clause at the Supreme Court into three distinct periods: pre-1937, when the court struggled to define the clause’s limits; 1937 to 1995, when the court allowed Congress to use it broadly; and post-1995, when the court began applying it more narrowly.

The first major case involving the Commerce Clause took place in 1824, when a steamboat owner challenged a move by the New York state legislature giving two other steamboat owners exclusive rights to the state’s waterways. The high court struck down the exclusive arrangement on the basis it violated the federal government’s rights under the Commerce Clause because “the power of regulating commerce extends to the regulation of navigation.”

“The Commerce Clause pretty much stayed … a transportation thing until the end of the 19th century, early 20th century, when the federal government tried to regulate business,” Villanova’s Mr. Langran said.

The clause was a key part of the government’s efforts to enforce the anti-monopoly Sherman Act.

The federal government was unsuccessful in the first Sherman Act case the Supreme Court considered. In the 1895 case, known as U.S. v. E.C. Knight Co., the court ruled that the federal government did not have the authority to stop one sugar company from obtaining another and having nearly full control of sugar manufacturing in the U.S.

The government had better luck in future cases.

In a 1905 case known as Swift & Co. v. U.S., the high court ruled that the Commerce Clause gave the federal government the power to stop price-fixing and collusion among meatpackers even if those businesses did all their business in a single state.

Many of President Franklin D. Roosevelt’s New Deal program relied on the authority of the Commerce Clause.

The Supreme Court initially rejected several New Deal programs, but came to adopt them as the court’s votes shifted in the late 1930s. These decisions helped expand the government’s power under the Commerce Clause.

In one case, known as Wickard v. Filburn, the court ruled that the government could limit how much wheat a farmer produced — even if the farmer didn’t intend to sell it — as part of a government effort to drive up prices.

Congress also used the Commerce Clause to justify laws that have a less obvious connection to interstate commerce, such as anti-human-trafficking laws or prohibitions against crossing state lines to sell lottery tickets. The clause’s authority was used to pass the landmark 1964 Civil Rights Act, which banned segregation and other discrimination.

“In general, what the court was doing in this period was deferring to Congress,” John Marshall Law School’s Mr. Schwinn said, adding that the court adopted arguments that “the activities Congress was regulating had a substantial impact on interstate economy.”

Mr. Langran said the Supreme Court became a greater proponent of states’ rights and started limiting the application of the Commerce Clause near the dawn of the 21st century.

In 1995, the high court struck down a statute relying on the Commerce Clause that made it a federal crime to carry a gun on school grounds. Five years later, the court struck down the part of the Violence Against Woman Act that relied on the clause to make domestic violence a federal crime.

Mr. Schwinn said the court ruled in both cases that the law did not relate significantly to commerce and intruded on traditional authority given to states.

It remains an open question whether the Supreme Court, which has seen nearly half its membership change since 2005, will retain as narrow a view of the Commerce Clause when it ultimately considers the health care law.

“Today’s court is quite states’ rights minded,” Mr. Langran said, “but not to the extreme it was a decade ago.”

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