Just Searched the new Senate Health Care Bill, No Reference Made to “Interstate Commerce”

October 21, 2009 — Josh Blackman

I think the argument over whether Obamacare is constitutional is  relatively futile under modern supreme court jurisprudence. See my previous thoughts here and here. But, I think it would serve Congress well to actually articulate some (bogus) way that Health Care affects interstate commerce.

I just searched through the 1500 page document, and did not see the traditional language Senators throw into bills linking the act and interstate commerce. Under Lopez and Morrison, Senators should have less hubris and just make up a link. Unsurprisingly, the word “constitution” does not appear once.

Oh well. It is constitutional under the modern commerce clause jurisprudence.

Posted in Uncategorized. 2 Comments »

2 Responses to “Just Searched the new Senate Health Care Bill, No Reference Made to “Interstate Commerce””

  1. Mike Says:
    October 26, 2009 at 10:53 am

    Again, Josh, the health care bill (specifically, the individual mandates) would be most justified under Congress’s enumerated taxing and spending power in Article I, section 8, not under the power to regulate interstate commerce, though that would certainly be a secondary justification. You failed to correct your previous post in which you attempted to conflate the two enumerated powers when discussing Prof. Chemerinsky’s op-ed in the L.A. Times (in which he solely rests his analysis on the taxing and spending power in Art. I, section 8) and here you repeat the same mistake.


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