WaPo Defends Individual Mandate; But In 1995 They Cautioned Congress to 'Demonstrate Some Modesty' On Commerce Clause

It was as predictable as the sun rising in the east, but today the Washington Post defended as constitutional ObamaCare's individual mandate. The mandate is defended by the administration as being legitimate under the Constitution's commerce clause, a defense the Post editorial board agreed with while conceding that the arguments against the mandate are "serious."

To justify the individual mandate via the commerce clause would fundamentally obliterate any limit on the federal power to regulate, but that doesn't seem to bother the Post in light of the government's "compelling goals of universal coverage and lower costs." But believe it or not, in the past the Post has hailed Court cases that drew limits on the commerce clause, even and especially when the political goals of the legislation invalidated was laudable. Indeed, after the 1995 case U.S. v. Lopez, which struck down a federal penalty on carrying guns near public schools, the Post cautioned Congress that "in the future, [it] will have to demonstrate some modesty in assessing the elasticity of federal power."


The Lopez case "sounds a warning that there are limits on federal power that the courts take seriously," the Post editorial board concluded in the April 28, 1995 paper. Five years later, following the Court invalidating a provision of the federal Violence Against Women Act in U.S. v. Morrison, the Post hailed the decision in the May 16, 2000 edition (emphasis mine):

THE SUPREME COURT justices who struck down yesterday a portion of the federal Violence Against Women Act did not dispute the fact that violence against women is a terrible problem. The act gave victims of gender-motivated violence the right to bring cases against their attackers in federal court. The court majority agrees that victims should be allowed to sue. The question is where. The case was about the balance of congressional and state power under the Constitution.

[...]

Beginning with the 1995 case of U.S. v. Lopez, however, the conservative majority on the modern court--properly, in our view--has emphasized that the clause is not an unlimited grant of legislative power and that congressional regulation of noncommercial activity cannot simply be assumed legitimate.

[...]

Taken too far, the court's logic could call into question all sorts of important areas of federal law--civil rights protections, environmental statutes and drug laws, to name a few. The court will have to draw lines carefully in the cases that are sure to come. But in this one, the court got it right. If Congress could federalize rape and assault, it's hard to think of anything it couldn't.

Yes, and if Congress can federalize your very existence as a justification for compelling you into an act of commerce that you don't otherwise wish to engage in, it's hard to think of anything it couldn't do.

Broadening health insurance coverage to more Americans is a laudable goal and there are plenty of sensible things Congress can do within the bounds of the Constitution to pursue that goal, things that don't violate the Constitution or infringe on personal economic liberty.

Would that the Post just listened to its earlier, wiser editorial pronouncements.

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters