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The Federal Government Can’t Do Lots Of Things

By Ian Millhiser  

"The Federal Government Can’t Do Lots Of Things"

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Today, a Republican judge in Florida will hear oral arguments in the most high-profile lawsuit challenging the Affordable Care Act. The crux of the plaintiffs’ argument in that case is that, if the federal government can require individuals to carry health insurance, then it is “difficult to perceive any limitation on federal power,” and this would be inconsistent with the structure of a Constitution that gives the federal government a list of very broad, but not infinite, powers. Libertarian writer Radley Balko frames the same argument somewhat more pointedly:

Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government? If your answer is yes, what restrictions would those be?

And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day.

This claim that upholding the Affordable Care Act would lead to limitless federal power has been a powerful talking point for the far right for quite some time now — but it lacks any basis whatsoever in reality. The truth is any number of essential laws, including laws criminalizing murder, rape, incest or assault, stretch well beyond Congress’ power under existing doctrine.

Because the Constitution speaks of laws that “regulate commerce” and not laws that have only a tenuous impact on the national economy, the Supreme Court casts a skeptical eye on federal laws that are not economic in nature. Thus, in U.S. v. Lopez, the Court struck down a federal ban on guns in school zones; and in U.S. v. Morrison, it struck down a law providing federal remedies to the victims of violence against women.

But if Congress can’t prevent violence against women, it follows that Congress also could not prevent other forms of violence, which is why a federal law criminalizing murder or assault is largely off the table. Congress could enact a limited ban on murder incidental to some of its other powers — because Article I of the Constitution empowers Congress to establish post offices, for example, Congress could make it illegal to kill or assault a postal worker during while they were engaged in their official duties — but a blanket federal law forbidding all murders is right out.

Similarly, consensual sex is not an economic activity any more than the mere act of bringing a gun into a school zone is. For this reason, the once-ubiquitous state laws regulating sexual morality could not be enacted by Congress (even if they weren’t also forbidden by the Fifth Amendment under Lawrence v. Texas). The Commerce Clause enables Congress to regulate the national markets in goods related to sex — pornography, contraception, sex toys and the like — but non-economic sexual morality laws are largely off the table.

Lopez also contradicts Balko’s claim that upholding economic regulations such as the Affordable Care Act would also empower Congress “to force us to eat vegetables every day.” Eating a vegetable, like bringing a gun into a school zone, is not economic in nature, so a federal mandatory eating law does not fit within Congress’ power to regulate commerce. The Constitution gives Congress the power to raise taxes and spend money, so Congress could tax individuals and then use that money to purchase vegetables — something it already does through programs like food stamps or federal school lunch subsidies — but it does not have the power to force anyone to eat those veggies.

One thing that Congress clearly does have the power to do, however, is to regulate the national health insurance market. It just doesn’t follow from this fact that Congress must also be allowed to do anything else.

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