Next week, the Supreme Court takes up the Obamacare litigation, the heart of which is the issue of whether the federal government can constitutionally force people to buy health insurance.
No longer is anyone calling this case “frivolous” or “easy,” as most commentators once did. After all, when the Supreme Court grants six hours of oral argument over three days — something not seen since Brown v. Board of Education and Roe v. Wade — that’s a pretty good sign that the case is important and difficult.
Of course, for most of our history, the question of whether Congress could, by using its constitutional power to regulate interstate commerce, require people to buy something would have been laughably easy. Obviously it can’t: sitting around doing nothing, or even deciding not to buy something, is neither commerce — traditionally defined as trade or exchange, so not even agriculture or manufacturing counts — nor anything interstate.
Indeed, it wasn’t until the New Deal that the Supreme Court allowed Congress to regulate wholly local economic activity. Using the power to make laws that are “necessary and proper” to the enforcement of broader regulations, the court said, the federal government could regulate certain types of local economic activity (wheat-farming, in one particular case) that had, in the national aggregate, a “substantial effect” on interstate commerce.
That “substantial effects” test continues to mark the outer bounds of Congress’ regulatory authority under modern constitutional law. Thus, in the most recent case challenging that power, Congress could stop two women from growing and consuming medicinal marijuana — in compliance with applicable state laws — because their economic activity substantially affected the (illegal) interstate market in marijuana.
