“Under the Due Process Clause, no Supreme Court decision since 1935 has struck down any state or federal legislation for infringing economic liberties, and any such action would be radically inconsistent with current constitutional doctrine.” –Professor Mark Hall of Wake Forest Law School

Prof. Hall is referring to the last statute to be struck down under the 5th or the 14th amendments, A.L.A. Schechter Poultry Corp. v. United States (1935). Two years later, the Supreme Court upheld Congress’ authority under the commerce clause in West Coast Hotel v. Parrish (1937). In that case, Congress sought to set a minimum wage for women which the Plaintiff claimed went beyond the regulatory power given to Congress by the commerce clause, which provides that Congress may pass any law so long as it is regulating economic activity interstate commerce.

The question of the day is whether it is within Congress’ authority to pass a law which, in part, requires U.S. citizens to purchase health insurance under the Patient Protection and Affordable Care Act. Odds are it will. Recent cases where the Supreme Court ruled Congress overstepped it’s authority include U.S. v. Lopez (a guns near schools case) and U.S. v. Morrison (striking down the Violence Against Women Act as not affecting interstate commerce). The difference in those two cases was drawing a connection between the legislation’s effect and economic activity was tenuous at best, something the Court was unwilling to stomach.

Here, though, requiring citizens to purchase health care is clearly within the scope of the commerce clause as it clearly affects interstate commerce. Similarly, requiring South Dakota residents to own guns also affects interstate commerce. The difference? Rep. Hal Wick is proving his point backwards.

Via the NY Times.

Read Judge Steeh’s 10/7/10 opinion upholding Obamacare (Congress acting within commerce clause powers).

Read Judge Moon’s 11/13/10 opinion upholding Obamacare (Congress acting within commerce clause powers).

Read Judge Hudson’s 12/13/10 opinion excising Obamacare in part (Congress exceeded regulatory powers under commerce clause).

Read Judge Vinson’s 1/31/11 opinion striking down Obamacare in whole (Congress exceeded regulatory powers under commerce clause).