The day after the House approved the healthcare bill, a reporter asked White House spokesman Robert Gibbs about the lawsuits some states were threatening against the legislation on the grounds that the provision forcing all Americans to buy health insurance was unconstitutional.
"I think there’s pretty longstanding precedent on the constitutionality of this," Gibbs said, without offering any substantive explanation.
Later in the briefing, another reporter pressed Gibbs on the question. "You say there’s established law, established precedent," said the reporter. "On what? What is it? What is the established precedent?"
"On the regulation of interstate commerce," said Gibbs.
The reporter then asked how the mandate in question was part of interstate commerce. "Well, that’s—I think, again—look, I’m not a lawyer, right," said Gibbs.
"And neither am I," said the reporter.
"Right," said Gibbs, "so we’re both in a pool where we can’t either see or touch the bottom."
Gibbs, of course, has every right to profess ignorance of the Constitution. Who knows, in this instance, he might be telling the truth. But he has no right to denigrate the ability of other Americans to understand the Constitution, and it is fatuous for him to suggest only lawyers can.
George Washington, who presided over the constitutional convention, was no lawyer. He was a farmer and a soldier. Ben Franklin, a delegate to the constitutional convention, was no lawyer. He was a printer and a writer. Most Americans who have fought and died to preserve our way of life were not lawyers. Did these patriots not understand the Constitution?
What part of "nor shall private property be taken for public use, without just compensation" does it take a law degree to understand?
Surely, a teacher, a doctor, a mechanic, a network news anchor and perhaps even a member of Congress can understand the words of the 10th Amendment as well as any lawyer can. It says: "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."
If the Constitution has not delegated to the federal government the power to force Americans to buy health insurance, then Congress and the President do not have that power. Period.
The Commerce Clause that Robert Gibbs says President Obama will use to claim that the federal government does have this power is no more difficult to understand than the words that protect our private property. It says: "The Congress shall have power … To regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
If you live in California and engage in a transaction with someone in Mexico, you are engaging in "commerce with foreign nations," and the federal government can regulate that transaction. It cannot force you to buy breakfast in a restaurant on Tuesdays. But if a restaurant you freely patronize buys grapefruits in Mexico, it can regulate that grapefruit transaction.
Similarly, if you live in Ohio and engage in a transaction with someone in Florida, you are engaging in commerce "among the several states." The federal government cannot force you to buy oranges once a week, but if a grocer you freely shop with buys oranges from a farmer in Florida, it can regulate that orange transaction.
Finally, if you engage in commerce "with the Indian tribes," the federal government can regulate that, too.
Over the years, liberals seeking to increase government control over our lives have tried to expand the meaning of commerce "among the several states" far beyond what the Framers understood it to mean. The most far-flung interpretation came in the 1942 case of Wickard v. Filburn. Here, the Supreme Court ruled that the federal government could use its power to regulate commerce "among the several states" to regulate the amount of wheat an Ohio farmer grew on his own land even though he never sold or traded that wheat but used it only for his own consumption on his own property.
It did take a whole team of lawyers to come up with this notion. But those lawyers—serving as Supreme Court justices—were not trying to understand the Constitution, they were trying to change it without going through the amendment process prescribed by the Constitution itself.
According to the Congressional Budget Office, until President Obama signed this healthcare bill, the federal government had never before ordered Americans to buy any good or service. The reason was simple: Until now, no President or Congress dared to exceed their constitutional authority in this way.
In November, I asked Utah Sen. Orrin Hatch, the senior Republican on the Senate Judiciary Committee, about the constitutionality of the healthcare bill’s individual mandate. "If that is held constitutional—for them to be able to tell us we have to purchase health insurance—then there is literally nothing that the federal government can’t force us to do," he said. "Nothing."
Hatch is not given to hyperbole. He spoke truth. Forcing Americans to buy a product they do not want is a tyrannical act beyond the constitutional authority of the President and Congress. It must be repealed.