The Commerce Clause in Full

Last week I started a rather ambitious project of analyzing the arguments in Florida et al. v. US DHHS, the lawsuit in which 20 states are suing the federal government over the health care reform bill, now law as the Patient Protection and Affordable Care Act.

The most interesting argument that they counselors Rivkin and Casey advance for the plaintiffs is that Congress has exceeded its powers granted to it under the commerce clause in requiring an individual to participate in an economic transaction with a third party. I think there will be lots of novel argumentation on both sides of this issue, ranging from framers' intent to statutory construction and even, if we wish really hard, a natural law discussion. However, before we can delve into this upcoming debate, we have to buckle down and understand the commerce clause as it stands in modern jurisprudence.

A Republican Form of Government

I've been liveblogging my reading of the twenty-state challenge to the health care reforms that Congress passed into law this year.  The Patient Protection and Affordable Care Act is undergoing a court challenge with arguments being heard today in Florida.

One of the least compelling arguments in the Florida et al. v United States Dept of Health and Human Services complaint thus far is paragraph 57:

57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States. 

It doesn't take much to see why this claim is ludicrous. Firstly, there is no reason to believe that unfunded mandates on the States are unconstitutional. In fact, they are a common way of accomplishing national goals. Their ubiquity has often led to grumbling from state legislators, but it goes to show that they are well-accepted by Congress and all Constitutional actors. Secondly, the structure of the Constitution suggests that this clause is not a limitation on the federal government. All limitations on Congressional prerogative are located in Article I, sec 9. This is not proof positive that the Republican Form of Government guarantee cannot be an injunction against the state, but it is a clue that McCollum might be barking up the wrong tree.