Precedents for the Unprecedented

Here are quotes from an anguished brief filed with the United States Supreme Court: “the present statute . . .departs markedly from any prior statute sustained as an exercise of the commerce power. . . .” It “is incapable of being regarded as within the scope of any of the other statutes or decisions.” Further, “there is no statutory precedent to support the Solicitor General's position in this case.” That position “is founded on a concept of the interstate commerce clause which has never been recognized by the Courts. While the wisdom of legislation is a matter for the Congress it is within the Court's proper prerogative to look with deep concern at an assertion of power never heretofore upheld.”

That brief was filed in the 1964 case of Katzenbach v. McClung. Two months later the Supreme Court decided that Congress did have the power to “regulate commerce” by requiring Ollie’s Barbecue, a family restaurant in Birmingham, Alabama, to serve African-Americans in its dining room. But the attorney for Ollie’s Barbecue was correct. The Civil Rights Act of 1964 was, to use a popular word, an “unprecedented” use of the commerce power. That “unprecedented” extension of congressional power turned out to be a crucial element in making of the United States a single, unified, national market, where all persons can buy and sell equally in essential transactions. From the vantage point of 2012, it’s hard to doubt that removing these irrational obstructions from the marketplace was anything but an elementary, inescapable means of regulating commerce “among the several states.”

We are in the midst of another struggle over an “unprecedented” use of Congressional power. The respondents’ brief for the state governments challenging the Patient Protection and Affordable Care Act uses that very word a whopping 19 times. And it warns darkly that allowing this “unprecedented” use of the Commerce Power—in this case, the power to regulate how individuals pay for what everyone admits is a commercial service, health care, open to federal regulation—will result in a nightmare dystopia where every human action is dictated by an insanely ambitious Congress.

Here’s one frightening possibility: “[A]ssume Congress finds that narrow-handled baseball bats are injurious to the public and, therefore, prescribes a minimum diameter for bats moving in commerce. To effectuate this law Congress could prohibit a person from whittling the handle of a bat which had moved in commerce. But could Congress also prohibit this person from hitting his wife with the bat? Or . . . could the government regulate the recipient of the bat in conduct which intrinsically is unconnected with the bat?”

I’m cheating again. This is also from the brief in Katzenbach v. McClung. I leave it to you to decide why Southern segregationists were afraid Congress would stop them from hitting people with bats. The more recent horribles cited by opponents of the PPACA center around citizens being forced to eat unappetizing snacks stuffed down their throats by Federal Broccoli Inspectors. Nothing, say that states and private parties opposing, will prevent Congress from passing such oppressive laws. 

But in the years since 1964, the Comprehensive Federal Baseball Bat Act has not materialized. Future Congresses may hunger, so to speak, for the power to make us eat broccoli. But that’s a remote possibility, compared with what Alexander Hamilton might have called a present contingency, a moment when the United States must decide as a nation whether our government is capable of doing what every other industrialized democracy has done—create a modern universal health care system. A constitution that survived the Louisiana Purchase, the Civil War, and the New Deal, surely has left in it just enough resilience not to crumple at the minimum-coverage provision.

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