24 March 2010
14 state attorneys general, all but one Republicans, have filed suit to block health care reform from going into effect. While I have only actually read Virginia A.G. Ken Cuccinelli’s complaint, both actions (the other A.G.s filed jointly) are premised on the notion that the United States Constitution’s Commerce Clause cannot be used to compel citizens to purchase health insurance. The Commerce Clause, situated in Article I, § 8, states that “The Congress shall have the power…[t]o regulate commerce…among the several states….” This Clause, which has been interpreted broadly by the Supreme Court since the New Deal Era, allows Congress to regulate channels of interstate commerce, persons or things in interstate commerce, or activities arising out of or connected to commercial transactions. As the Court held in Wickard v. Filburn, and recently affirmed in Gonzales v. Raich, an activity needn’t be expressly “interstate” in character to fall within Congress’s regulatory ambit; rather, it need only have a non-tenuous effect on interstate activity.