(Sept. 14) -- As arguments begin Tuesday in a Florida District Court where 20 state attorneys general and the National Federation of Independent Business are challenging the constitutionality of the health care law, the American people can be forgiven for feeling a bit ill at ease about the direction their country is going. James Madison would feel the same way.
Madison's vision of limited government was integral to the creation of the U.S. Constitution and its ratification, and he thought the limited nature of the federal government was so clear from the text of the Constitution itself that even the Bill of Rights should have been unnecessary.
So imagine his response if the Congress of 1789 had proposed a law like the Patient Protection and Affordable Care Act -- i.e., Obamacare. Nowhere does the Constitution grant the power to force individuals to buy a product.
One constitutional provision, the Commerce Clause, allows the federal government "to regulate commerce ... among the several States." But regulating the health of the citizenry had always been the role of state, not federal government, and the notion that medical care would be considered interstate commerce would have been shocking to Madison's contemporaries since in almost all cases the doctor and his patient live in the same state.
But the government -- and the way we view the Commerce Clause -- isn't what it used to be.
The landmark case of Wickard v. Filburn was decided in 1942 and has dramatically expanded the application of the Commerce Clause. In Wickard, the federal government wanted to apply its agricultural regulations to Roscoe Filburn, an Ohio farmer who was growing wheat for personal use on his own farm. He wasn't selling it, so it never entered commerce. And it certainly didn't cross state lines as it went from his field to his own table. Nonetheless, the Supreme Court determined that his wheat production had an incidental effect on the national market for wheat since Filburn and those like him would then not be buying their wheat in interstate commerce.
Wickard v. Filburn was crucial in clearing the way for the pathbreaking expansions of government in the New Deal. Now that our government is engaging in a renewed expansion into the lives of the American citizen, that case is becoming relevant yet again and is central to the government's case defending Obamacare against federal lawsuits brought by more than 20 states.
It claims the impact of health and health care costs on the national economy can be felt through their effect on governments and individuals who subsidize coverage for the uninsured, the costs to the economy of poorer health and shorter lifespan, and the rate of personal bankruptcies.
This argument has shocking implications for the notion of limited government, because the same reasoning could be used to expand government even further beyond its already bloated state.
As Sen. Tom Coburn, R-Okla., queried during Senate Judiciary Committee hearings on Elena Kagan's nomination to the Supreme Court, what would prevent Congress from claiming even something as novel and intrusive as mandating individuals to consume a certain quota of fruits and vegetables affected interstate commerce?
Indeed, is there any action that Congress could not argue has some effect on the economy, and if on the local economy then, by extension, on the national economy? But the health care law goes even further than that, because Congress has chosen to regulate not only actions, but inaction -- the failure to buy or provide qualifying health insurance.
Congress had no scruples in passing a bill whose constitutional basis was paper thin. President Barack Obama was proud to sign it. Now only the federal courts stand between our burgeoning federal government and the Constitution's model of limited government.
Carrie Severino is counsel and policy director for the Judicial Crisis Network and a former law clerk for U.S. Supreme Court Justice Clarence Thomas.
