While this is certainly a victory for Federalism, at least to some limited degree, there was no shortage of media coverage highlighting the contrast between this decision and previous federal District Court decisions. Perhaps the most notable was the decision issued by Judge George Steeh of Michigan earlier this year, which declared that an individual's decision to not purchase insurance coverage had a substantial effect on interstate commerce, which in turn gave Congress the authority to regulate that activity under the Commerce Clause of Article 1, Section 8 of the US Constitution [3].
That decision, among other things, suggested that the source of Congress's broad power to regulate even purely intra-state commerce began with Wickard v. Filburn (1942), wherein the Supreme Court ruled that Congress had the authority to regulate personal activity which had a distant and indirect effect on interstate commerce, even though no economic activity or transfer of money, goods, or other value changed hands [4]. In that case, the Supreme Court ruled that Roscoe Filburn had violated the Agricultural Adjustment Act of 1938 [5] by growing more wheat on his property than Congress permitted in the Act, even though the wheat was grown for his own personal use (in the feeding of his animals) and was not being sold or changing hands.
The Court's interpretation relied on the indirect effect Filburn's action had on other commerce; that the growing of his own wheat in excess of what Congress had allowed would lead to him purchasing less wheat from others, that wheat purchases are frequently made across state lines (although not necessarily in Filburn's case), and that therefore the Congress had the authority to regulate Filburn's activity under the interstate commerce clause. Filburn's activity, however innocent it may have been, had gotten in the way of the economic manipulation the federal government had embarked upon in an effort to prop up falling wheat prices.
This decision, not surprisingly, occurred at the tail end of the Progressive Era [6] under the Presidency of Franklin Delano Roosevelt. The author of the decision for the majority was Justice Robert H. Jackson, an FDR appointee. Wickard v. Filburn is one of a set of Supreme Court decisions which rounded out the first wave of the Progressive Era, and is the principle decision relied on by Progressives to find the authority to legislate nearly anything the Congress deems in the interest of the general welfare of the People. Indeed, no Supreme Court decisions were issued for the next 53 years which substantially limited the powers of the federal government to impose legislation on purely intra-state commerce. In 1995, the decision issued in United States v. Alfonso Lopez found that the Congress did not have the authority to regulate the carrying of a firearm, as that action did not have a significant effect on interstate commerce.
When combined with the Filburn opinion and nearly 70 years of case law based on the assumption that the Congress has broad regulatory powers granted under the interstate commerce clause, the Steeh opinion (MI) has effectively provided the final, closing remark of the Progressive argument that the federal government has unlimited regulatory powers, wholly unconstrained by any provision contained within the Constitution. The Progressive argument has now become that the regulatory powers are indeed so unlimited that the Congress can legally regulate inaction by an individual who refuses to purchase a private service.
The logical argument follows; to what degree can the Congress regulate any activity, even inactivity? Can the Congress impose regulations that restrict the purchase and use of firearms which are produced, sold, and constrained for use strictly within the boundaries of one state [7]? Can the Congress impose regulations on states to require the spending of money on Medicaid [8]? Can the Congress (by way of an 800 page Federal Highway Administration regulation) require local governments to replace all street signs that contain all capital letters with signs that have only the first letter of each word capitalized [9] [10]? Can the Congress dictate to local schools what kinds of foods may be sold in their cafeterias and regulate bake sales [11]? If I produce in my basement one of those miniature umbrellas that goes in tropical drinks and put it in my own drink, can Congress regulate what type of wood I use, or how much it weighs? According to Progressive thought, yes it can - after all, by producing my own miniature umbrella, I am likely to not purchase a miniature umbrella from someone else, and since miniature umbrellas are commodities which are routinely sold across state lines, I am affecting interstate commerce. I suspect that the writing of the "Miniature Drink Umbrellas and Plastic Fake Poop Act of 2011" is already well underway at the Center for American Progress [12].
To that end, federalism has taken yet another punch to the gut. The era where states' rights reigned supreme and the United States were (notice I used the word 'were' rather than 'was') a collection of pseudo-sovereign states and not simply territories which had slightly different laws and different income tax rates, is over. Rather, we have become a society of Progressively-brainwashed citizens who answer to an all-powerful national government rather than our state or locality. We have effectively become subjects, albeit with the power to elect our own captors who make their way to Washington, only to become complicit bureaucratic automatons unwilling to face tough questions from their constituents [13] [14] [15].
Perhaps the most amazing indication of the stranglehold Progressivism has on modern American culture is illustrated by the percentage of Americans who don't understand the definition of the word "Federalism" - an informal poll [16] has indicated that 35% of Americans believe that Federalism is "a political system where the national government has ultimate power." The correct answer, of course, is that Federalism is a system wherein the states and federal government share power, the answer selected by 57% of respondents. Another 8% thought that Federalism was either "a political party at the time of the founding," or "a set of essays defending the Constitution."
These views are substantially forwarded by the Progressive media and locally by Colorado's Progressive Talk station on the AM dial. Sadly, callers into some of the local shows also frequently offer up an assumption of unlimited government, apparently oblivious to the restrictions placed on the power of the federal government by the Constitution, and espoused by our Founders. But ordinary citizens aren't the only ones who apparently have no concept of limited government - even Nancy Pelosi, the Speaker of the House, when questioned on Congress's Constitutional authority to enact health care legislation, could only respond with, "Are you serious? Are you serious? [17]" When pressed further, Speaker Pelosi's office officially responded by forwarding a press release which cited - you guess it - the interstate commerce clause as the source of Congress's new found health care regulatory powers [18] [19]. The release also uses the equally Constitutionally-questionable Medicare and Medicaid programs to prop up the justification for health care reform, and goes on to make what is perhaps the most honest statement issued by Progressives regarding Congressional regulatory authority:
Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited [18].
The ignorance of limited Congressional authority and the concept of Federalism is made strikingly clear by a seemingly widespread Progressive argument which attempts to define why the PPACA can require an individual to purchase health insurance - after all, you're required to purchase car insurance, aren't you? Yes, in Colorado you are required to purchase car insurance by the state. There is no federal government requirement to purchase car insurance (yet). The car insurance comparison only works when compared to state legislation - whether or not your state can require car insurance or the purchase of private health insurance is a matter to be left to your state constitution and state courts, and in many cases has indeed been affirmed [20]. Such matters are outside the jurisdiction of the Congress, and you won't find Constitutionalists arguing otherwise, much to the surprise and chagrin of Mario Solis Marich.
If we lastly consider the words of the "father of the Constitution," we must ask if the unlimited authority assumed granted to Congress to regulate anything it wishes is in accord with the original principle of a government of enumerated powers:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State [21]. - James Madison, Federalist 45 (1788)and
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution [22]. - U.S. Constitution, Preamble to the Bill of Rights (1791)and
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people [23]. - U.S. Constitution, Amendment 9 (1791)and
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people [24]. - U.S. Constitution, Amendment 10 (1791)
In love of liberty,
The Bulletproof Patriot
