Scalia/Kennedy/Thomas/Alito: Commerce Clause Doesn't Give Government the Power 'To Regulate All Private Conduct'

By Pete Winn | June 28, 2012 | 11:55am EDT

A view of the Supreme Court in Washington, Wednesday, June 27, 2012.  (AP Photo/Evan Vucci)

( - Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Clarence Thomas joined together in a dissent to today’s Supreme Court decision on Obamacare which argued that the Supreme Court should have struck down the entire statute.

The justices said it should have been an "easy issue" for the Court to decide that failure to engage in economic activity (the purchase of health insurance) was not something Congress had the power to regulate under the Constitution’s Commerce Clause.

“What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power -- upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States,” the justices wrote.

“Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

“That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as . . . the ne plus ultra of expansive Commerce Clause jurisprudence.

“To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."

“All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay.

“But the mere fact that we all consume food and are thus, sooner or later, participants in the ‘market’ for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.”

However, the four justices also rejected Chief Justice John Roberts' prevailing  argument that the individual mandate could be justified by the constitutional power of Congress to tax and spend.

“The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1, 65–66 (1936).

“Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development.

“The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system.

“That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme.

“The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding,” they wrote.

“These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the States have no choice."

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