The Commerce Clause, American Democracy, and the Affordable Care Act

Abstract

The purpose of the Commerce Clause was to promote international and domestic trade, and it was included in the text of the Constitution as a means of addressing a specific problem that the government under the Articles of Confederation was powerless to resolve. The original meaning of the congressional power to regulate commerce “among the several states” should be sought in the narrower dimension of the specific problem that it was intended to address: restrictions on trade imposed by the states to favor residents over those of other states. As I demonstrate here, there is ample historical evidence for this purpose. It is a limited and specific purpose and should guide the interpretation of the Commerce Clause in reviewing the constitutionality of federal legislation. It is one of many ends sought by those who drafted and ratified the Constitution, and it may have contradicted some of the ends promoted by other provisions or principles. The Commerce Clause was certainly never intended to act as the lynchpin for the expansion of federal power, as Balkin misappropriates it. Furthermore, as I demonstrate here, the Commerce Clause does not support the Patient Protection and Affordable Care Act of 2010, which serves as the most recent and controversial case study in the abuse to which the Commerce Clause has been put by Congress and the courts.