I was listening to the tape-delayed Obamacare oral arguments in the car Tuesday when I first heard Justice Breyer's Commerce Clause diatribe, and I meant to post something when I got home. But after making dinner and putting the kids to bed, I forgot.
Until today, that is, when I read Jeffrey Anderson's account of "Breyer's Missteps." I think Jeffrey is far too generous to Breyer. Here is a fuller transcript of Breyer's outburst:
I look back into history, and I think if we look back into history we see sometimes Congress can create commerce out of nothing. That's the national bank, which was created out of nothing to create other commerce out of nothing. I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.
And I look at the person who's growing marijuana in her house, or I look at the farmer who is growing the wheat for home consumption. This seems to have more substantial effects.
Is this commerce? Well, it seems to me more commerce than marijuana. I mean, is it, in fact, a regulation? Well, why not? If creating a bank is, why isn't this?
And then you say, ah, but one thing here out of all those things is different, and that is you're making somebody do something.
I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road? Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows? Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it? Affirmative action?
Breyer alludes to four Supreme Court cases. And he manages to botch the key facts of the case in every single one of them. Let's start at the top:
That's the national bank, which was created out of nothing to create other commerce out of nothing.
This is a reference to McCulloch v. Maryland, in which the Court upheld Congress' ability to create the Second Bank of the United States. But, as Paul Clement pointed out in oral argument, Chief Justice John Marshall found that Congress' power to create the bank came from the Necessary and Proper Clause, not the Commerce Clause as Breyer suggests. Furthermore, Congress did not compel individuals to deposit money in the bank, only that Congress could create it in order to better manage its financial affairs.
Next Breyer says:
I say, hey, can't Congress make people drive faster than 45 -- 40 miles an hour on a road?
No, actually they can't. Or at least no Court precedent says they can. The closest case is South Dakota v. Dole where the Court held that Congress could force states to raise their drinking age to 21. But again, that wasn't even a Commerce Clause case, it was a Spending Clause case (just like Wednesday's argument over the Medicaid expansion). And while Congress has, in the past, forced states to adopt a national speed limit in exchange for highway funds, it has never forced anyone to drive at a minimum speed.
Didn't they make that man growing his own wheat go into the market and buy other wheat for his -- for his cows?
No, they didn't. Breyer is pretty clearly referring to the landmark New Deal case Wickard v Filburn here, a case where the Department of Agriculture fined a farmer for growing more wheat than the government set quota allowed. Again, no one forced the farmer to do anything. He could have chosen not to grow wheat, or not to be a farmer at all. The individual mandate is completely different because Congress is forcing all Americans to buy a specific product as a condition of their existence within the U.S.
Didn't they make Mrs. -- if she married somebody who had marijuana in her basement, wouldn't she have to go and get rid of it?
Again, no. The plaintiff in the Court's recent medical marijuana case, Gonzalez v. Raich, was suing the federal government to stop them from destroying her pot. No one was forcing her to grow pot or to go around throwing away other people's pot. Where Breyer came up with this fact pattern is a complete mystery.
Breyer mischaracterized the facts and holdings of every case he alluded to. If this is the quality of argument the liberals on the court are making to Justice Kennedy, the individual mandate is a goner.