The argument that ObamaCare is a valid exercise of the Federal Commerce Power is preposterous.

For one thing, insurance contracts are not articles of commerce. As Justice Field wrote in Paul v. Virginia, 8 Wall. (75 U.S.) 168 (1869) (http://laws.findlaw.com/us/75/168.html):

“These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not inter-state transactions, though the parties may be domiciled in different States. The policies do not take effect-are not executed contracts-until delivered by the agent in Virginia. They are, then, local transactions, and are governed by the local law. They do not constitute a part of the commerce between the States any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce.”

Though Justice Field was absolutely right, the later New Deal Court in typical fashion overruled Paul. See United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944) @ http://laws.findlaw.com/us/322/533.html, finding that insurance transactions were subject to federal regulation under the Commerce Clause. South-Eastern, like Wickard v. Filburn, 317 U.S. 111 (1942), http://laws.findlaw.com/us/317/111.html, is one of those decisions that ought to be ignored by fair-minded people, though it’s hard to ignore malignant tumours on the body of our Constitution and our freedoms. If all else fails, here’s a chance for some noble civil disobedience or state interposition.

And if, as Justice Field said, insurance contracts are not themselves subject to federal commerce regulation, doesn’t it follow that individuals–whether in the insurance market or notcannot be regulated either. Individuals are not themselves articles of commerce and are not subject to commerce regulation unless they are carrying on commerce.

The most that can be said is that even if we make the gigantic leap to hold that insurance itself is commerce, that would give the federal government only the power to regulate insurance companies, and not the individuals who either buy insurance policies or decline to buy.

For more on the abuse of the commerce clause generally, please see Federal Commerce Power: Leviathan’s Dragnet @ https://douglassbartley.wordpress.com/2012/02/23/federal-commerce-power-leviathans-dragnet/.

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Published in: on March 23, 2012 at 1:36 pm  Leave a Comment  

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