03/28/2012 06:09 pm ET | Updated May 28, 2012

The Disappointing Supreme Court Argument

The Supreme Court argument over the constitutionality of the Obama health care law has been more like a legislative argument between liberal and conservatives than a constitutional one. Recall that that the Court agreed to hear the constitutional challenge to the law, which is not a review of its merits. Rather the Court is supposed to decide if Congress exceeded its power under the Commerce Clause of the Constitution in enacting the law.

To undertake this task, the Court should start with the language of the Commerce Clause. It allows Congress "to regulate commerce with foreign nations, and among the several States." U.S. Const. art. I, sec. 8, clause 3. Any judge trying to make sense of these handful of undefined words needs to understand why it's there in the first place. The drafters of the Constitution, we know from their debates, wanted to avoid the problem of states interfering with the free flow of commerce across state lines which had seriously hampered the economy during the prior eight years under the weaker Articles of Confederation. They did not want to allow each state to impose tariffs on goods that were moving through on their way to and from the Atlantic or other main waterways. Thus, the primary objective, as Justice John Marshall wrote in the first case interpreting the Clause, was to stop interference in the development of national markets.

At Tuesday's Supreme Court argument the Solicitor General opened his defense of the law by stating there was a single national market for health care. He made no argument that the law is needed to prevent states from interfering in the development of a health care market. The justices should have asked him to defend the idea that the Commerce Clause, as originally understood, even comes into play in this situation. Why is there a need for Congress to "regulate commerce"?

None of the justices did so. Rather, we heard an endless number of questions from the four liberals about the "problem" of the uninsured raising health care costs for the rest of the nation, and from the conservative justices about how far the commerce power extends. The conservative justices (I include Kennedy) were skeptical that the commerce power allowed Congress to enact the law. But that skepticism did not lead any of them to ask the lawyers what the original point of the Commerce Clause was and how this law was justified under it.

The conservatives, of course, labored under the weight of many decisions of the Court, starting in 1937, which found the Commerce Clause to be a general grant of congressional power for most everything. These decisions cannot be ignored. But the Court has consistently held that the Commerce power was left vague so that it could evolve. The Court can take this opportunity to revisit the original meaning and undertake the correct analysis: is this law needed to prevent the states from impeding the development of a national health care market?

The liberal justices' questioning reveals a desire to let Congress enact laws that "affect" interstate commerce to do good things for the country. But this was not the intent of the Commerce Clause. The Constitution limited the powers of Congress to pass laws to specific subjects it enumerated in Art. I. There is no general power to take care of poor people needing health care. The Constitution leaves that lawmaking up to the states, which have almost unlimited legislative powers. Justice Breyer, for example, lectured his colleagues about the reality that everyone will "get sick" and need health care. That, in his view, justifies the enactment of the law. But missing from that analysis is any support in the Constitution for such legislation.

The conservative justices should have pressed the Solicitor General about why the problem cannot be left to the states. They should have asked him about his views of the original intent of the Commerce Clause. But even they seemed to concede from their questions that the Commerce Clause had evolved into something very different from what was intended at the Constitutional Convention. And anyone wanting to understand just what the Commerce Clause means today is left wondering despite hours of Supreme Court arguments.