Is Obama’s Health-Care Reform Proposal Unconstitutional?

[WSJ_law_blog]

We don’t claim to know the answer to the question posed by this post’s title, but Andrew Napolitano, a former New Jersey judge and current senior legal analyst for the Fox News channel (pictured), thinks the answer is yes.

Writing in the WSJ on Tuesday, Napolitano calls President Obama’s health-care proposal “unconstitutional at its core.” The reason will be near and dear to all those law-school 2Ls who remember so very well why the year 1937 is important — and can rattle off all the big Commerce Clause cases.

The bottom line, for all those who aren’t 2Ls: Napolitano argues that the Constitution’s Commerce Clause, which explicitly allows the regulation of “interstate” commerce and from which much of Congress’s law-making authority derives, is not broad enough to allow health-care regulation. Napolitano’s reasoning: “the delivery of medical services occurs in one place and does not move across interstate lines.”

Continues Napolitano:

One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

The same Congress that wants to tell family farmers what to grow in their backyards has declined “to keep regular” the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.

That’s right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person’s appendix because that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with “free” health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren’t upholding the Constitution—they are evading it.

Not everyone agrees. Over at the See First blog, Evan Falchuk a lawyer and president of an organization called Best Doctors, has a few choice words for Napolitano. Writes, Falchuk:

Napolitano is a former state court judge, so I respect his credentials as a fellow member of the bar. But a first year law student could demolish most of Napolitano’s argument. And that same first year student, having done some quick research, could dispense with the rest.

So is medical care “commerce”? Given the decades of precedent, it’s silly to suggest it is not. You go to the doctor and pay him for his services – that’s the simplest form of commerce. And if it’s not commerce then what are we spending $2 trillion each year on? Napolitano says he has discovered a new category of not-commerce: something called “delivery of intimate services to the human body.”

LBers, any thoughts? We’d love to get a discussion going on this among those with a passing (or more developed) knowledge of the history of Commerce Clause jurisprudence. Let us know.