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The Commerce Clause Yellow Brick Road

The Commerce Clause has been used over time by the Supreme Court to enable and block economic regulation. Now a new watershed case involving an individual health care mandate is sitting on the high court's docket.The Commerce Clause in the U.S. Constitution has been a source of strong disagreement since the time of Thomas Jefferson. Arguments over this clause, which on its face controls what economic activity Congress can and cannot regulate, has intertwined with New Deal legislation, the ability to ship wine directly to consumers and, now, the Affordable Care Act.

Nina Totenberg, the encyclopedic NPR reporter who covers the U.S. Supreme Court, delivered a brief history lesson on the Commerce Clause this week, as anticipation builds for the high court's decision on what detractors sneeringly call ObamaCare.

Thomas Jefferson was one of the first to question how far the Commerce Clause could be stretched after the Supreme Court, led by Jefferson nemesis John Marshall, ruled in 1824 that the Constitution gave Congress broad powers.

Totenberg says the argument picked up with intensity 70 years later when the federal government tried to limit the antitrust actions of emerging large corporations. Federal officials suffered a setback in an 1895 ruling involving a sugar company when the court said the government lacked jurisdiction to regulate its activities because most refining was conducted within a state. 

The conservative era limiting government regulation prevailed until it bumped into the Great Depression and Franklin Roosevelt's New Deal. To rekindle the economy and political hope, Roosevelt unleashed an avalanche of programs aimed at putting people back to work and propping up wages. However, a narrow 5-4 ruling in 1936 dealing with regulation of coal mining confirmed the conservative perspective on the Commerce Clause. The decision so enraged Roosevelt, and a large part of the country, that he proposed adding six new judges to the Supreme Court.

Roosevelt's court-packing proposal went nowhere, but the Supreme Court took the hint and issued a ruling involving the steel industry that changed the course of Commerce Clause precedents for more than 50 years.

During that time, Totenberg says the high court deferred to Congress on matters of economic regulation. That changed in 1995 when another 5-4 majority said a law prohibiting possession of guns within 1,000 feet of school was too much of a stretch for the Commerce Clause.

It was during this period that a pivotal decision came down from the Supreme Court, Totenberg notes. In the 1942 case called Wickard V. Filburn, justices affirmed an act to stabilize agricultural prices by paying farmers not to plant crops. Roscoe Filburn challenged the statute, saying he had a right to plant crops for his own use. Justices disagreed, concluding Filburn could exceed his growth allotment, which in turn could undermine the goal of stabilizing prices by controlling crop production.

Which brings us to present time and the Affordable Care Act, which conservatives have opposed as exceeding federal authority under the Commerce Clause by requiring all Americans to have health insurance. But Totenberg hints that the argument lurking behind the Affordable Care Act runs deeper, in more ideological waters.

She quotes Randy Barrett, the Georgetown Law Center professor who is spearheading the challenge, saying he believes New Deal era court decisions deferring to Congress to regulate economic activity were "wrongly decided." Barrett believes the current court can look back to an earlier time — the time when the court sided with corporations, not Congress — to repeal all or portions of the Affordable Care Act.

Jeff Rosen, a George Washington University law professor, tells Totenberg the real motivation behind repeal of ObamaCare is to blunt future and current economic regulation, including minimum wage laws and workplace safety

Less obvious in this historical tale is the political sensitivity of the Supreme Court.  A conservative-leaning court in the 1930s switched course as justices, along with everyone else in the world, watched events in Europe spin out of control with the emergence of fascism and communism. They came to agree economic regulation was better than economic chaos.

It is an interesting footnote to contemplate at a time when health care costs are spiraling out of control in a world economy sagging under huge debt.

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