Congress has used the Constitution's Commerce Clause to fight prostitution and domestic violence, to break monopolies and to combat segregation — but its biggest test could come over the Obama administration's claim that it can compel individuals to buy health insurance.
A federal judge earlier this month struck down part of the new health care law on the grounds that Congress had stretched the Commerce Clause too far. Other federal courts, though, have upheld the law, and its fate is certain to be decided eventually by the Supreme Court.
The battle is just the latest in a long line of showdowns over the clause. While some see it as a critical tool to give power to the most important pieces of legislation, others believe Congress has applied it too broadly.
"It's kind of gone from being broadly interpreted to narrowly interpreted, to broadly being interpreted again and then narrowly interpreted," said Robert Langran, a Villanova University political science professor who specializes in constitutional law. "And now, who knows?"
Found in Article I, Section 8, Clause 3, the Commerce Clause gives Congress the power "to regulate commerce … among the several states." In its infancy, Congress used the power to build interstate roads, but has since expanded its claim of authority to target social ills such as human trafficking, segregation and, now, the uninsured.
**FILE** President Obama greets Gail O'Brien, from Keene, N.H., in the back yard of a private residence in Falls Church, Va., on Sept. 22 to discuss the Patient's Bill of Rights and health care reform. Earlier this year, Ms. O'Brien was diagnosed with high grade non-Hodgkin's lymphoma and had no health insurance. (Associated Press)In defending the new law, the Obama administration says that everyone will eventually need health care and caring for the uninsured affects all aspects of health care, so requiring residents to buy coverage is a way to regulate that market.
The government makes other arguments, too. It insists Congress' taxing powers or the Necessary and Proper Clause, also known as the "elastic clause" because of its vague but broad grant of powers, can be used to justify the health care law.
Still, the Commerce Clause remains the chief battleground, and on Dec. 13, U.S. District Judge Henry E. Hudson ruled against the government and in favor of a suit brought by Virginia's attorney general that challenged the "individual mandate" to buy coverage.
"An individual's personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of Commerce Clause," Judge Hudson wrote.
At least by one reckoning, the Commerce Clause is the reason the Constitution was written in the first place. Maryland and Virginia were trying to settle rights to the Potomac River under the old Articles of Confederation, and their efforts led to the Annapolis Conference that called for a convention to be held in Philadelphia in 1787.
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