If the meaning of “interstate commerce” could be stretched and twisted to cover things that never entered any commerce, then “interstate commerce” became just a magic phrase that could make the Tenth Amendment disappear into thin air.
For more than half a century, courts let Congress do whatever it wanted to do, so long as the politicians said that they were regulating interstate commerce.
But there was consternation among politicians and the media in 1995, when the Supreme Court said that carrying a gun near a school was not interstate commerce, so that Congress had no power to regulate it— even though states had that power.
Howls of protest went up from politicians and the media because the Supreme Court voted 5 to 4 in favor of an ordinary common-sense reading of the Constitution, instead of the clever word games that had been used for so long to circumvent the Tenth Amendment.
ObamaCare is another piece of Congressional legislation for which there is no federal authority in the Constitution. But when someone asked Nancy Pelosi where in the Constitution there was any authority for passing such a law, her reply was “Are you kidding?”
Two federal courts have now said that they are not kidding.
The ultimate question is whether the Supreme Court of the United States will back them up. That may depend on how soon the case reaches the Supreme court.
If the issue wends its way slowly up through the Circuit Courts of Appeal, by the time it reaches the Supreme Court, Obama may have put more of his appointees there— and, if so, they will probably rubberstamp anything he does. He would therefore have done a complete end-run around the Constitution and be well on his way to becoming the Hugo Chavez of North America.
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