Not should we? but Can we?

I am amazed at how many times we forget to ask the question "Can we?" when it comes to federal legislation.

From a recent NPR article:

A legal battle could end up in the Supreme Court. Georgetown University law professor Randy Barnett is already gearing up for that. He maintains Congress would be overstepping its powers enumerated in the Constitution if it required people to buy health insurance.

"Never in the history of the United States has the federal government ever required someone to engage in an economic activity with a private party. It's never been done, and anything that's never been done before has no precedent for it," he said. "It would have to be a new decision by the Supreme Court to uphold this new extension of power. And if they uphold this, then there's pretty much nothing that Congress can't do and that's the end of the enumerated power scheme."

Proponents of Obamacare are arguing that:

.....the mandate to buy health insurance would be seen by the high court as part of Congress' power to regulate interstate commerce.

Here is an excerpt from a very interesting article on this issue that appeared in a 1993 Wall Street Journal article:

.......In particular, Congress could exercise only that authority specifically granted to it by the people and the states.

There was a list — and not a very long list. One of the powers enumerated on it was the "Power . . . To regulate Commerce with foreign Nations and among the several States." One of the most serious deficiencies of the first union under the Articles of Confederation was that states were able to erect barriers to trade with other states and foreign countries. The Commerce Clause was added to the Constitution so that Congress could create the original North American free trade zone — within the U.S. itself.

The commerce power in the battered Constitution that emerged from the 1930s and 1940s, however, was very different. After being routed by President Roosevelt and his Congress, the Supreme Court fled to the Commerce Clause, finding there a way to avoid treading upon the vital interests of a Congress determined to regulate the economic relationships of the citizenry, not to mention its health, welfare and safety. In Wickard v. Filburn , in 1942, the court went so far as to rule that Congress could prevent a farmer from growing wheat for his own consumption. Too much of an effect on commerce, reasoned the court — this fellow gobbling wheat he grew himself. After all, he could have purchased it interstate. On that day, the Framers' ghosts wept.

Of course, the commerce power was still, in theory, limited. In Wickard , after all, the man at least was a farmer, someone engaged in growing and selling foodstocks. Commerce was in the air, somewhere. And the court continued to pay at least lip service to the notion that federal government is a government of limited authority, and that Congress can regulate only based upon some nexus to interstate commerce — or in reference to one of its other enumerated powers, like the power to tax and spend. So long as Congress provides a reasonable explanation of that nexus, its actions will be upheld. The limits of the contemporary Commerce Clause are not very clear, but most would agree there are some limits.

The final test, however, has come. In the new health-care system, individuals will not be forced to belong because of their occupation, employment, or business activities — as in the case of Social Security. They will be dragooned into the system for no other reason than that they are people who are here. If the courts uphold Congress's authority to impose this system, they must once and for all draw the curtain on the Constitution of 1787 and admit that there is nothing that Congress cannot do under the Commerce Clause. The polite fiction that we live under a government of limited powers must be discarded — Leviathan must be embraced.

The implications of this final extension of the commerce power are frightening. If Congress can regulate you because you are , then it can do anything to you not forbidden by the handful of restraints contained in the Bill of Rights. For example, if Congress thinks Americans are too fat — many are — and this somehow will affect interstate commerce — who's to say it doesn't? — can it not decree that Americans shall lose weight? Indeed, under the new system, any activity that might increase the costs of health care might be regulatable.