PPACA Commerce Clause

It appears that the PPACA stimulates much discussion and debate these days. The heart of the matter lies within the translation of the Commerce Clause, and even the most outspoken defenders of the PPACA admit that this legislation may go well beyond the actual authority of Congress. The individual mandate requires that Americans purchase health insurance or face the real threat of civil penalty.

The Commerce Clause is found in Article One, Section eight, Clause three of the United States Constitution. The clause specifically states that the US Congress shall have the power “to regulate commerce with foreign nations, and among several states, and with the Indian Tribes.” The PPACA falls under the portion of the clause with respects to “…and among several states,…”. Therefore, the actual commerce power granted to Congress under the rules of the Constitution depends upon one’s definition of “commerce”. The Constitutions does not define the word “commerce” and therefore provides the Supreme Court, and for that matter, Congress and the current administration, much flexibility and latitude in defining what constitutes “commerce”. Commerce is generally defined as “the buying and selling of goods, especially on a large scale, as between cities or nations.”

Another area of concern and question with regards to the Commerce Clause is the actual power or authority granted to Congress or to the individual states. Does the Commerce Clause grant Congress the power to legislate or determine the rules in areas such as the purchase of health insurance, which would generally fall under the individual states scope of “police powers”. Or another way of asking the question, does Congress have the right and authority to require American citizens to purchase anything, or does that power remain with the individual states?

The lack of specific language regarding the Commerce Clause and the failure of the framers of the Constitution to actually define “commerce” has been the focus of much discussion and debate since the PPACA legislation was signed in to law. Does the “vagueness” or lack of specific details regarding the “Commerce Clause” speak to the genius of our fore fathers, or does it speak to the clever nature of PPACA supporters to twist the spirit of Article one, Section eight, Clause three of the Constitution to allow nearly any good or service to fall under the definition of “Federal Commerce”?

The answer to this commerce question also lies within the authority and responsibility of each individual state within it’s own borders (intrastate), and the authority and responsibility of Congress from an all encompassing federalist perspective that applies to all states (interstate). So, even if it is determined that health insurance falls under the items of commerce, the next question that must be answered is whether or not Congress has the authority to require all states to participate in the commerce of health insurance.

Lets briefly take a look at the implications if this exercise of power is allowed and the purchase of health insurance is required for all Americans. If Congress can mandate that we all purchase health insurance, then what aspect of human activity would be exempt? If the mandate was upheld by the Supreme Court, Congress would now have the authority to force American citizens to do anything they see fit. Congress could loosely assign any activity as commerce. And as you see, this give Congress unlimited authority, and undermines and usurps any individual state authority. To suggest that Congress has unlimited authority in any area is far-fetched, knowing the great lengths that our founders took to maintain a balance of power between the three branches of government and the individual state. Thus, it seems highly unlikely that health insurance would have been considered a likely good or service included in the definition of commerce from the perspective of the authors of the Constitution. And for these reasons, I believe the US Supreme Court should exercise extreme caution in granting this much power to our US Congress. Unfortunately, using the Commerce Clause as a political tool to redefine what is generally considered commerce is nothing new. And therefore, to predict what the US Supreme Court Justices will actually decide in this landmark case is anyone’s guess!

Dr. Kipp A. Van Camp DO, FAAFP, DAOCR, CAQ-IR

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