The Liberty Amendments Part 2

* Three program management offices (PMO): 1) Services and Enforcement; 2) Modernization and Information Technology Services (MITS); and 3) Health Care Council. These PMOs are accountable to the ESC for ACA implementation and work with the IRS business operating divisions to ensure efforts are successfully coordinated.

* Four functional ESCs, each led by an executive chair, have responsibility for specific provisions in the ACA that directly affect the four business operating divisions (Wage and Investment, Small Business/Self-Employed, Large Business and International, and Tax Exempt/Government Ent.i.ties).

* The Services and Enforcement Exchange Working Teams are responsible for planning the implementation of the exchange provisions scheduled for 2014.54 Amos Singletary's fears, among those of others, are now fully realized.

The proposed Tax Amendment would set a ceiling for income earners at 15 percent. It provides a degree of flexibility by allowing Congress to inst.i.tute a flat tax lower than 15 percent or additional income-based tax rates below the 15 percent cap. Thus, individuals at lower income levels, such as those who work part-time, students with summer jobs, adults in low-skilled jobs, retired senior citizens, etc., would pay less in taxes in absolute dollars and/or be subject to lower tax rates.

The proposed Tax Amendment eliminates all forms of double taxation, including the so-called inheritance or death tax (a tax on estates often pa.s.sed from parents and grandparents to their off-spring); taxes on investment income (which promotes wealth creation and economic growth); and taxes on corporations (which reduce research, capital expansion, and job creation). In most cases, these taxes have been layered upon income taxes already paid by individuals.

In addition, the proposed Tax Amendment moves the deadline for filing federal income tax returns to the day before federal elections-currently from April 15 to the first Monday in November, the day before election day. Therefore, rather than an almost seven-month gap between the filing of federal income tax returns and voting on election day, which is the situation today, the voter is able to cast his ballot with the real and personal consequences of a candidate's tax and spending record or promises fresh in mind. Linking the two events of tax-paying and voting, in a way and at a time when the voter's attention is most concentrated, is intended to improve political and governing accountability.

Moreover, the proposed Tax and Spending Amendments, together, will force Congress to address the growing catastrophe of unfunded obligations, including reforming the Medicare and Social Security programs to meet inescapable actuarial and economic realities. Finally, the current Rube Goldberglike tax code will be dispatched, along with much of the IRS bureaucracy, and replaced with a relatively simple and straightforward tax collection system that no longer torments and abuses the taxpayer. The cap on taxes will also eliminate the confiscatory and complex nature of federal taxation that exists today.55 The Framers' expectation that federal spending and taxes would be limited to support only explicitly const.i.tutional functions-to "pay debts and provide for the common defense and general welfare"-has been distorted deliberately as part of the Statists' design. It is folly to believe that Congress and the president, on their own, will make the necessary and difficult decisions to address the impending financial debacle. After all, they and their predecessors engineered the approaching tsunami. As the situation becomes direr, the federal government's actions will grow more oppressive.

The proposed Spending and Tax Amendments work in conjunction and seek to avert a societal implosion.

CHAPTER SIX.

AN AMENDMENT TO LIMIT THE FEDERAL BUREAUCRACY.

SECTION 1: All federal departments and agencies shall expire if said departments and agencies are not individually reauthorized in stand-alone reauthorization bills every three years by a majority vote of the House of Representatives and the Senate.

SECTION 2: All Executive Branch regulations exceeding an economic burden of $100 million, as determined jointly by the Government Accountability Office and the Congressional Budget Office, shall be submitted to a permanent Joint Committee of Congress, hereafter the Congressional Delegation Oversight Committee, for review and approval prior to their implementation.

SECTION 3: The Committee shall consist of seven members of the House of Representatives, four chosen by the Speaker and three chosen by the Minority Leader; and seven members of the Senate, four chosen by the Majority Leader and three chosen by the Minority Leader. No member shall serve on the Committee beyond a single three-year term.

SECTION 4: The Committee shall vote no later than six months from the date of the submission of the regulation to the Committee. The Committee shall make no change to the regulation, either approving or disapproving the regulation by majority vote as submitted.

SECTION 5: If the Committee does not act within six months from the date of the submission of the regulation to the Committee, the regulation shall be considered disapproved and must not be implemented by the Executive Branch.

IN ELEMENTARY SCHOOL, CHILDREN are taught that the Const.i.tution establishes a federal government composed of three branches: the legislative, executive, and judicial. Articles I, II, and III of the Const.i.tution create and grant limited powers and defined roles to each branch. This concept, known as separation of powers, is designed to ensure that no single body becomes too powerful and thus rules tyrannically over the others, the states, and the people. The Const.i.tution, through an arrangement of separate but coequal branches, checks and balances, enumerated powers, federalism, and a bill of rights, diffuses power. This construct was intended to prevent the overcentralization and concentration of power in the federal government and was fundamental to preserving the nature of republican government.

Article I specifically vests Congress with the legislative power. Congress is most directly accountable to the people (the House, whose members are elected directly, and the Senate, whose members were originally chosen by the states). It stands to reason that the power to establish laws would fall to it. Article I provides, in part, "All legislative powers herein granted shall be vested in a Congress of the United States. . . . "1 In Federalist 48, James Madison envisions Congress as potentially the most powerful of the three branches. He explained, "The legislative department derives a superiority in our governments from other circ.u.mstances. Its const.i.tutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measure, the encroachments which it makes on the co-ordinate departments."2 It should be emphasized, however, that Madison did not mean for any branch to act outside its const.i.tutionally prescribed limits. He wrote, "It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments."3 And that included Congress. "I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation."4 John Locke, who was the most widely read philosopher during the American Revolutionary period, explained in his extremely influential Second Treatise of Government that a legislative body elected by the people must not delegate the power of lawmaking to any other ent.i.ty, for that power was delegated to the legislature by the people. Locke wrote, "The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pa.s.s it over to others."5 He added: The power of the legislative, being derived from the people by a positive voluntary grant and inst.i.tutions, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.6 Locke explained that the legislature "is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have one placed it."7 It is imperative, therefore, that the body chosen by the people, and vested with legislative authority, enact the laws under which the people live. "These are the bounds which the trust, that is put in them by the society, and the law of G.o.d and nature, have set to the legislative power of every common-wealth, in all forms of government."8 Charles de Montesquieu, who was among the most widely read philosophers during the post-revolutionary period, was hugely influential on the Framers. He is mentioned several times at the Const.i.tutional Convention, in the Federalist Papers, and during the state ratification conventions. In his masterpiece, The Spirit of the Laws, Montesquieu first expounded on the concept of three distinct governmental branches, each with separate powers to legislate, execute, and adjudicate. He wrote, "When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. . . . "9 The history and philosophy undergirding the separation-of-powers doctrine, and the unique character of the legislative branch and lawmaking, are unambiguous. As Madison explained in Federalist 51: "But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."10 The Framers believed that the inst.i.tutions of government they had created in the Const.i.tution, and the specific, limited powers they had granted each of them, achieved these ends.

In fact, in 1892, the Supreme Court underscored this most basic understanding when it declared in Field v. Clark that the issue of Congress delegating lawmaking authority to the executive branch would raze the const.i.tutional structure the Framers had established. The Court ruled, "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Const.i.tution."11 But once again, in the late eighteenth century, as part of the Progressive movement's agenda, a concerted campaign was launched to undo the const.i.tutional construct by concentrating and consolidating power in the federal government. As Woodrow Wilson exclaimed in 1908: The makers of the federal Const.i.tution followed the scheme as they found it expounded by Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist [Papers] read like thoughtful applications of Montesquieu to the political needs and circ.u.mstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. . . . Politics is turned into mechanics under this touch. . . . The trouble with the theory is that government is not a machine, but a living thing. . . . It is modified by its environment, necessitated by its tasks, shaped to its functions by sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. . . .12 In the 1930s and 1940s, President Franklin Roosevelt launched the New Deal, in which Congress pa.s.sed laws creating federal agencies and delegating power to them to regulate vast segments of the economy and daily life, in many instances bypa.s.sing or supplanting state lawmaking authority. Initially, the Supreme Court struck down a number of these programs-ruling that they went far beyond the authority granted the federal government under the Interstate Commerce Clause-including the Railroad Retirement Act's compulsory retirement plans in Railroad Retirement Board v. Alton R. Co.;13 sections of the National Industrial Recovery Act's wage and hour requirements in Schechter Poultry Corp. v. United States;14 and the Bituminous Coal Conservation Act's establishment of a national coal commission and coal districts as well as the fixing of prices, wages, and hours in Carter v. Carter Coal Company.15 However, the Court would soon reverse course and abandon its own precedent after Roosevelt threatened to change the Court's makeup. Over time, he did in fact replace the sitting justices with men who shared his ideological views. Subsequently, in the 1937 Jones v. Laughlin Steel Corp case, the Court held that "intrastate activities that 'have a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions' are within Congress' power to regulate";16 later, in the 1942 Wickard v. Filburn decision, it went much further, ruling that withholding goods from interstate commerce affects interstate commerce and therefore such activity is subject to congressional lawmaking power.17 One of Roosevelt's most prominent advisors, Harvard law professor James Landis, insisted in 1938 that "[i]n terms of political theory, the administrative process springs from the inadequacy of a simple tripart.i.te form of government to deal with modern problems."18 These days, each of the federal branches has seized expanded authority over the states and the individual. In addition to Congress's legislative authority, it is now commonplace for the courts to legislate by judicial review and the executive branch to legislate by regulation and executive order. More to the justification of the proposed amendment, the vastness of the federal bureaucracy-that is, an administrative state or what has become a fourth branch of government-destroys the very idea of a representative legislature and does severe damage to the separation-of-powers doctrine. Departments and agencies created by Congress are attached to the executive branch and exercise lawmaking power that is both delegated and not delegated by Congress. And their myriad regulations and rules have the force of law, including criminal and civil penalties. Under present conditions, the administrative state's omnipresence makes congressional oversight, political accountability, and rational reform mostly impracticable if not impossible. And Congress seems more than willing to abandon its core function to the executive branch and accept the status quo, having taken rare and minor steps to rein in the bureaucracy.

Ironically, judicial review, which is exercised vigorously and expansively by the Courts, is all but nonexistent in matters involving congressional delegations to administrative agencies. They mostly defer to the discretion of Congress and, with few exceptions, uphold administrative actions to the extent they consider them seriously at all. Moreover, on those occasions when the Supreme Court does exercise judicial review in these matters, it has been known to extend the power of the administrative state beyond Congress's already broad delegations. For example, in the 2007 case Ma.s.sachusetts v. Environmental Protection Agency, by a 5 to 4 vote the Court actually expanded the Environmental Protection Agency's (EPA) authority to regulate carbon dioxide and other greenhouse gases, despite the agency's long-held determination that these gases are not pollutants subject to regulation. The Court opened the door to an infinite number of agency regulations affecting an endless line of industries, products, and processes.19 The modern administrative state has power, resources, and tentacles that boggle the mind. For example, in 2008, the Small Business Administration estimated that annual regulatory compliance costs amounted to $1.752 trillion.20 In 2012, the Obama administration issued new regulations costing $236 billion. New EPA regulations alone resulted in $172 billion in regulatory costs.21 The 2012 Federal Register, the official federal publication doc.u.menting administrative rules and proposed rules, exceeded 77,000 pages. The 2011 and 2010 Federal Registers were 81,247 and 81,405 pages long, respectively. In 2011, regulatory agencies issued 3,807 final rules, yet Congress pa.s.sed and the president signed 81 laws.22 In 2012, the bureaucracy reportedly issued 212 "economically significant" federal rules, each projected to impose more than $100 million in economic costs. In the last ten years, the issuance of economically significant rules has increased 108 percent.23 Furthermore, the number of criminal offenses sp.a.w.ned by these regulations, for which citizens are liable, is unknown even to the federal government. The Heritage Foundation observed that "[s]cores of federal departments and agencies have created so many criminal offenses that the Congressional Research Office (CRS) [an arm of Congress] . . . admitted that it was unable to even count all the offenses. The Service's best estimate? 'Tens of thousands.' . . . Congress's own experts do not have a clear understanding of the size and scope of federal criminalization."24 Most jarringly, presidents will not hesitate to use the administrative state's rulemaking processes to circ.u.mvent Congress when Congress refuses to enact legislation demanded by a president, or does not act quickly enough to satisfy a president's ambitions. Indeed, President Barack Obama has declared repeatedly, including in his 2013 State of the Union speech, that "if Congress won't act soon to protect future generations, I will"-threatening to legislate by executive branch regulation in lieu of congressional action.25 The system of federalism is also undermined severely when federal departments and agencies commandeer and preempt state authority, destroying state sovereignty and forcing states into their service-or, conversely, when states surrender their sovereignty in exchange for federal grants and subsidies conditioned on a state's compliance with the mandates of a federal department or agency.

To shed some light on the process, it is worth a brief primer on administrative law-in plain English, of course. Consider that in 1972, Congress pa.s.sed the Clean Water Act, a law that empowered the EPA to take steps to reduce water pollution by enacting rules or regulations. Once Congress grants such regulatory authority, the agency has discretion to achieve the stated goal.

The actual process of enacting a regulation is somewhat technical. Regulations often originate with what is called an "Advance Notice of Proposed Rulemaking." This initial step consists of a proposal of the action the agency is planning. After a given period of time, the agency releases a "Proposed Rule" for the public to consider and, if moved, submit formal comments. Comments pertaining to a given rule are usually filed by those parties or individuals who have a specific interest in the substance of the rule. The EPA will elicit comments from, say, environmental groups or businesses affected by the regulation. Comments are intended to notify the agency of any legal or perceived legal deficiencies in the proposed rule. Interested parties can notify the agency of widespread support or opposition. The standard time frame for submission of comments to a proposed rule is usually sixty days.26 Unfortunately, the process is not always as transparent and professionally objective as might appear on the surface. It can be beset with political and ideological agendas, cronyism, and secret communications, making the comment period a formality, not a serious pursuit of useful information and advice.

The agency has wide lat.i.tude in determining when to promulgate a final rule. The Congressional Review Act (CRA) provides that Congress may review these regulations and, if a joint resolution susceptible to a presidential veto pa.s.ses, the regulation can be overruled.27 Since 1996, Congress has disapproved only a single rule. Clearly, the CRA is not an effective tool for ensuring congressional oversight or curbing regulatory overreach.

Private parties wis.h.i.+ng to challenge the legality of a final rule are obligated generally to file a pet.i.tion in the U.S. Court of Appeals for the District Columbia Circuit within sixty days of the promulgation of the final rule.28 Challenging the legality of a regulation is a difficult and expensive process and succeeds in very limited instances. A number of factors make challenging federal regulations in court particularly difficult.

First, the court hearing the challenge presumes, as discussed earlier, that the rule is valid. The private party challenging the regulation must demonstrate that the agency exceeded its rulemaking authority. The burden is on private parties to show that the regulation is illegal. Under current law, the reviewing court will rule a given regulation improper if it determines the agency acted in an "arbitrary or capricious" manner or if the agency abused its discretion or acted "not in accordance with the law."29 Therefore, an agency's regulation will be upheld provided it is rationally based. What const.i.tutes "rationally based" is not always clear, and individuals and groups spend many thousands of dollars on expensive lawyers who attempt to convince courts the agency has acted in an unreasonable manner. It is difficult, if not impossible, for most individuals to husband the resources and expertise to challenge effectively these regulations. Even lawyers who specialize in administrative law often fail. Moreover, most citizens have no idea that rules that may affect their daily lives are being promulgated, given the insular nature of the process, the quant.i.ty of regulations being issued, and the news media's disinterest.

Second, courts have dismissed categorically the allegation that a particular agency action const.i.tutes impermissible legislative activity. In other words, courts reject the argument that Congress cannot delegate its core function of legislating to an executive branch ent.i.ty-known as the nondelegation doctrine. The Const.i.tution's plain language makes clear that Congress is vested with "all legislative powers herein granted." But the Supreme Court has declared the doctrine unworkable, which, in turn, damages the separation-of-powers doctrine. The Court, which often exercises judicial review in an activist fas.h.i.+on, believes it is "almost never qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."30 Another factor favoring federal agency rulemaking authority is the overwhelming deference paid by the courts to the agency's positions. When private ent.i.ties challenge a given regulation, they often allege that the agency acted improperly. Under a Supreme Courtinvented legal standard known as the Chevron doctrine, when Congress pa.s.ses a broadly worded law, the agency's interpretation of what the law means will be controlling unless such interpretation is unreasonable.31 Thus, for example, Congress pa.s.ses a generic, benign statute and delegates the authority to work out the details of the law to the federal bureaucracy, which is not accountable to the electorate. Lower courts, which often hear cases involving regulatory challenges, are bound by the Chevron doctrine and will uphold agency regulations in all but the most extraordinary challenges.

There are numerous regulations that exceed their respective statutory mandates-so many, in fact, that they cannot all be discussed here. However, a group of recent environmental regulations-recently upheld as valid by the D.C. Circuit Court of Appeals-ill.u.s.trate the desirability of the proposed amendment.

In 1970, Congress pa.s.sed significant amendments to the Clean Air Act (CAA) that were designed to reduce air pollution from stationary sources, such as factories and power plants, and mobile sources, such as cars and airplanes.32 The newly created EPA was tasked with enforcing and administering the law. Congress pa.s.sed additional amendments to the CAA in 1973 and 1990. Each time, Congress decided to expand the EPA's authority to regulate a growing number of hazardous substances.

Fast-forward to 2009: carbon emissions, a very small fraction of greenhouse gas emissions (GHGs), became the target of, among others, the environmental movement. But Congress refused to pa.s.s new legislation expanding the CAA's coverage to include greenhouse gases, for they are not pollutants. Nevertheless, thenEPA administrator Lisa Jackson, admitting the CAA was not an "ideal tool," decided she would use the more than forty-year-old statute for curbing carbon emissions. As such, she and the president were bypa.s.sing Congress. Congress chose to do nothing about it.

The CAA's provisions are not designed for carbon regulation. For example, a program operated under the CAA known as the Prevention of Significant Deterioration (PSD) mandates specific pollution thresholds for triggering regulatory requirements.33 These thresholds are detailed in the statute itself. Therefore, if a power plant emits 250 tons per year of a pollutant, the PSD program obligates that power plant to take costly steps to remediate the pollution.34 Congress considered the merits of setting the threshold numbers and pa.s.sed a statute setting those numbers. Hence, Congress does have the practical capacity to do such things. When the EPA decided to use the CAA as legal justification for inst.i.tuting regulations relating to greenhouse gas emissions, the EPA was obligated to comply with that law's provisions. Greenhouse gases are emitted by stationary sources, even HVAC systems, numbering in the millions.35 All of these sources emit GHGs in excess of 250 tons per year. Since the PSD program was expanded at the instigation of the EPA and not by statute, the EPA would logically have to regulate these millions of stationary sources.

But realizing the impossibility of the task, Jackson noted that the CAA was not the proper law for regulating GHGs. Consequently, she decided the EPA would discard existing statutory law and set new regulatory thresholds for GHGs. When challenged, the D.C. Circuit upheld the changes, deferring to the EPA's authority.

Another example: On March 22, 2010, Congress pa.s.sed Obamacare, a bill some 2,700 pages long.36 An a.n.a.lysis by Peter Ferrara of the Heartland Inst.i.tute concludes the law establishes more than "150 new bureaucracies, agencies, boards, commissions and programs" that "are empowered to tell doctors and hospitals what is quality health care and what is not, what are best practices in medicine, how their medical practices should be structured, and what they will be paid and when."37 The Congressional Research Service reported, "The precise number of new ent.i.ties that will ultimately be created . . . is currently unknowable."38 The regulatory burden and cost will be enormous.39 And during the early stages of the law's implementation, the executive branch has already issued twenty thousand pages of regulations and thousands more to come.40 Initial Internal Revenue Service regulations alone amount to 159 pages.41 When Congress pa.s.sed Obamacare it attempted by statute to confer fundamental legislative powers on the executive branch, and even sought to prohibit future Congresses from altering its unconst.i.tutional act. Specifically, Congress created the fifteen-member Independent Payment Advisory Board (IPAB), which ostensibly is responsible for controlling Medicare costs. The board submits a proposal to Congress, which automatically becomes law, and the Department of Health and Human Services must implement it, unless the proposal is affirmatively blocked by Congress and the president. Even then, it can be stopped only if the elected branches agree on a subst.i.tute. Obamacare also attempts to prohibit citizens from challenging the board's decisions in court. Moreover, Obamacare seeks to tie the hands of future Congresses by forbidding Congress from dissolving the board outside of a seven-month period in 2017, and only by a supermajority three-fifths vote of both houses. If Congress does not act in that time frame, Congress is prohibited from even altering a board proposal.42 Apart from all the rest, the abuse of power by one Congress and president in attempting to reorganize the federal government and redraft fundamentally the Const.i.tution outside of the amendment processes, with the intention of binding all future Congresses in perpetuity and leaving citizens with no political or legal recourse, is simply sinister. But it underscores the Statists' contempt for the Const.i.tution and self-government.

Shortly thereafter, on July 21, 2010, the same Congress pa.s.sed, and the president signed, the Dodd-Frank Wall Street Reform and Consumer Protection Act, aka Dodd-Frank, supposedly intended to protect the consumer from risky decisions by financial inst.i.tutions.43 The law is as offensive to the Const.i.tution as Obamacare, again violating separation of powers and insulating broad policy-making decisions from the citizenry.

For example, under Dodd-Frank, Congress established the Consumer Financial Protection Bureau (CFPB), which has open-ended power to prevent certain financial inst.i.tutions from committing or engaging in "unfair," "deceptive," or "abusive" practices respecting a consumer financial product or service. No statutory definition for "unfair" or "deceptive" acts or practices is provided. The CFPB has exclusive authority to prescribe rules, issue guidance, conduct examinations, require reports, or issue exemptions, with little legal recourse by those affected by its decisions.44 Moreover, Congress has no appropriating authority over the CFPB, for the law authorizes the CFPB to fund itself by unilaterally claiming funds from the Federal Reserve Board. The director of the CFPB alone determines the amount of funding the CFPB receives from the Fed. The law also prohibits explicitly the House and Senate appropriations committees from even attempting to "review" the CFPB's budget. And the director receives a five-year term. He can be removed by the president only "for inefficiency, neglect of duty, or malfeasance in office."45 In addition, Congress established the fifteen-member Financial Stability Oversight Council and granted it broad executive powers. It has open-ended discretion to designate nonbank financial inst.i.tutions "systemically important," from which flows wide-ranging regulatory authority over these businesses. The law actually prohibits aggrieved parties from challenging the legal sufficiency of the council's actions and conclusions in court.46 The delegation of colossal power to an administrative state, authority the Const.i.tution grants to individual branches of the federal government, violates the separation-of-powers doctrine, including Congress's legislative authority and power over the public purse, and presidential prerogatives in determining whether to fire an executive branch employee; it also thwarts the public's ability to partic.i.p.ate in major legal, social, cultural, and economic decisions affecting their lives through the grant and expansion of lawmaking power in bureaucratic fiefdoms largely immune from legislative oversight and input. Plain and simple, this is further evidence of the dissolution of const.i.tutional republicanism.

It would seem counterintuitive for Congress to surrender its own power to executive branch ent.i.ties of its own making, and for a president to surrender his own decision-making authority to an administrative state. But if the purpose is to centralize and concentrate power in the federal government, in defiance of our founding principles and the Const.i.tution-as the Statists have preached and promoted actively for more than a century-then the frequent and broad delegation of lawmaking power to a permanent, ever-present federal bureaucracy, insulated from public influence, makes perfect sense.

The proposed amendment eschews the issue of delegation per se, the total reversal of which would seem impossible at this point, but importantly, it returns final decision-making authority respecting laws (regulations and rules) with significant economic impact to Congress, thereby restoring a critical element of separation of powers under the Const.i.tution and reinvigorating representative government. The proposed amendment sunsets every executive federal department and agency and obligates Congress to determine the efficacy of each ent.i.ty every three years. It also establishes a permanent joint committee, which makes final determinations respecting the most economically costly federal regulations. The proposed amendment does not prevent Congress from otherwise abolis.h.i.+ng or creating federal departments or agencies, modifying their missions, or affecting their directions, policies, and funding. However, given Congress's abandonment of its core const.i.tutional duty, thereby gutting the fundamental nature of representative government, the proposed amendment is among the only ways to rebalance the legislative function of the federal government.

The proposed amendment embraces the Framers' original plan: Congress legislates, not administrative agencies within the executive branch. It obligates Congress to undertake the duties intended by the Framers and set forth in the Const.i.tution, prohibiting it from delegating and abdicating final authority over major laws.

CHAPTER SEVEN.

AN AMENDMENT TO PROMOTE FREE ENTERPRISE.

SECTION 1: Congress's power to regulate Commerce is not a plenary grant of power to the federal government to regulate and control economic activity but a specific grant of power limited to preventing states from impeding commerce and trade between and among the several States.

SECTION 2: Congress's power to regulate Commerce does not extend to activity within a state, whether or not it affects interstate commerce; nor does it extend to compelling an individual or ent.i.ty to partic.i.p.ate in commerce or trade.

THE CONSt.i.tUTION'S COMMERCE CLAUSE states that Congress shall have the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."1 The proposed amendment focuses on that part of the clause respecting Congress's power to regulate commerce among the several states and addresses the federal government's ever-expanding involvement in and interference with private economic activity and property rights. It is at first essential to understand what the Framers meant by these words and the Framers' purpose.

In 1996, the late const.i.tutional scholar and Harvard law professor Raoul Berger explained that [t]he focus on trade alone was not fortuitous; the Framers were fastidious in their choice of words. For them, "trade" did not, for example, include agricultural production, which plainly was "local." In the Convention, George Mason said that the "general government could not know how to make laws for every part [state]-such as respects agriculture." And [Alexander] Hamilton wrote in Federalist No. 17 that "the supervision of agriculture and of other concerns of a similar nature . . . which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction." In Federalist No. 12, he adverted to the "rivals.h.i.+p that once subsisted" between agriculture and commerce. . . . Hamilton referred separately in Federalist No. 36 to "agriculture, commerce, [and] manufactures" as "different . . . kinds" of "wealth, property, and industry," not as fused in commerce. In sum, the Founders conceived of "commerce" as "trade," the interchange of goods by one State with another.2 Berger added: The Founders' all-but-exclusive concern was with exactions by some states from their neighbors. [James] Madison said, "It would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter." [James] Wilson "dwelt on the injustice and impolicy of leaving New Jersey[,] Connecticut &c any longer subject to the exactions of their commercial neighbours." That the Commerce Clause was meant to remedy this mischief is clear. Madison stated that it was necessary to remove "existing & injurious retaliations among the States," that "the best guard against [this 'abuse'] was the right in the Genl. Government to regulate trade between State and State." [Roger] Sherman stated that "the oppression of the uncommercial States was guarded agst. by the power to regulate trade between the States." And Oliver Elseworth said that the "power of regulating trade between the States will protect them agst each other." Given the jealous attachment to state sovereignty, the absence of objection that the Commerce Clause invaded State autonomy indicates that such an intrusion was simply unimaginable. [Thomas] Jefferson accurately reflected the Founders' views when he stated in 1791 that "the power given to Congress by the Const.i.tution does not extend to the internal regulation of the commerce of a state . . . which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations. . . . " That no more was intended was made clear by Madison in a letter to J. C. Cabell: "among the several States" . . . grew out of the abuses of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government. . . .3 In 2001, Commerce Clause expert and Georgetown University law professor Randy E. Barnett undertook an extensive examination of the original meaning of the Const.i.tution's Commerce Clause and the Framers' intent. Having also returned to the Const.i.tutional Convention and the Federalist Papers, as well as the state ratification debates, Barnett "found . . . that the term 'commerce' was consistently used in the narrow sense and that there is no surviving example of it being used in either source in any broader sense. The same holds true for the use of the word 'commerce' in the Federalist Papers."4 Barnett wrote, "In Madison's notes for the Const.i.tutional Convention, the term 'commerce' appears thirty-four times in the speeches of the delegates. Eight of these are unambiguous references to commerce with foreign nations which can only consist of trade. In every other instance, the terms 'trade' or 'exchange' could be subst.i.tuted for the term 'commerce' with the apparent meaning of the statement preserved. In no instance is the term 'commerce' clearly used to refer to 'any gainful activity' or anything broader than trade."5 Barnett continued, "In none of the sixty-three appearances of the term 'commerce' in the Federalist Papers is it ever used to unambiguously refer to any activity beyond trade or exchange."6 Furthermore, he wrote, "Having examined every use of the term 'commerce' that appears in the reports of the state ratification conventions, I found that the term was uniformly used to refer to trade or exchange, rather than all gainful activity."7 In the end, writes Barnett, "if anyone in the Const.i.tutional Convention or the state ratification conventions used the term 'commerce' to refer to something more comprehensive than 'trade' or 'exchange,' they either failed to make explicit that meaning or their comments were not recorded for posterity."8 In 2002, the late const.i.tutional scholar Robert H. Bork and attorney Daniel E. Troy, also examining the Const.i.tution's Commerce Clause, explained: Early American writings distinguish "commerce" from the cla.s.s of subjects to which it is separate but connected in two ways: either by a direct discussion of what is excluded from commerce, or by implication. Alexander Hamilton's writings in The Federalist Papers provide many of these definitions by implication. Hamilton often included "commerce" in a list of concepts which are similar in one way (activities critical to the success of the nation, for instance), but distinct enough to call for separate identification, as in "the state of commerce, of arts, of industry." These early discussions of the nature of the Union suggest that "commerce" does not include manufacturing, agriculture, labor, or industry. In short, "commerce" does not seem to have been used during the founding era to refer to those acts that precede the act of trade. Interstate commerce seems to refer to interstate trade-that is, commerce is "intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities between the . . . citizens of different States."9 In fact, time and again the Framers made clear their intentions. In Federalist 42, Madison stated, in part: "A very material object of this power was the relief of the States which import and export through other States from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the pa.s.sage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former."10 In Federalist 45, Madison wrote famously that "[t]he powers delegated by the proposed Const.i.tution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."11 For the Framers, promoting and securing commerce and trade were not matters of theoretical and academic debate but national survival. They were addressing a dire problem that threatened the existence of the country following the Revolutionary War. The young nation was weak economically. The country barely survived war with one of the world's superpowers, Great Britain. The individual states had often functioned like individual countries and were given to frequent squabbles. Now the fledgling nation found itself surrounded by European powers in Canada, Florida, and Louisiana. In an age of mercantilism, Europe sought advantages in trade by excluding American businesses and promoting their own.12 The states themselves, although joined together in 1781 by the Articles of Confederation, sought to gain advantage over each other with tariffs and regulations.13 States even printed their own currency, which added to the confusion.14 It is difficult to see how America could have long survived under this type of system. Yet this was the state of American enterprise in the early days of the republic. As a.s.sociate Justice Joseph Story observed: It is hardly possible to exaggerate the oppressed and degraded state of domestic commerce, manufactures, and agriculture, at the time of the adoption of the Const.i.tution. Our s.h.i.+ps were almost driven from the ocean; our work-shops were nearly deserted; our mechanics were in a starving condition; and our agriculture was sunk to the lowest ebb. These were the natural results of the inability of the General Government to regulate commerce, so as to prevent the injurious monopolies and exclusions of foreign nations, and the conflicting, and often ruinous regulations of the different States.15 Story's commentaries on the Const.i.tution are considered some of the most significant early works on the subject. It is important to note that Story, although writing in the 1800s, used the language typical of the time of the Const.i.tution's drafting and ratification.16 Commerce, manufacturing, and agriculture were separate and distinct areas of economic activity, as is plain from, among other things, their multiple references in the Federalist Papers.17 "Commerce" was not a catchall to describe all three. If commerce was not agriculture or manufacturing, then it would indicate that the Framers did not intend the federal government to regulate without severe and effective limits. The separation of the three concepts, in other words, indicates a significant and purposeful limitation to the commerce power.

Indeed, commerce was so important in the early days that it was a catalyst for the Const.i.tutional Convention. In 1786, Virginia invited the other states to a meeting in Annapolis, Maryland, to deal with commercial issues. That September, several delegates met but realized that commerce could not be separated from larger issues of governance. They called for another convention and returned to their states.18 Congress agreed and, of course, in 1787 representatives convened in Philadelphia at what would later be known as the Const.i.tutional Convention.

James Madison, among others, had been troubled by the many deficiencies in the Articles of Confederation, including their detrimental effect on commerce. In 1787, he wrote a critique of the Articles, listing their many "vices." Within a section focusing on "Trespa.s.ses of the States on the rights of each other," he identified how the individual states had been engaging in trade wars.

The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive & vexatious in themselves, than they are destructive of the general harmony.19 States with navigable ports extracted taxes from adjoining states, whose merchants were exporting their goods to foreign markets. States taxed imported goods from other states and, in some instances, at rates even higher than foreign countries. In the preface to the debates, Madison laid the problem bare: [T]he States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro' them, as N.Y. Pena. Virga. & S-Carolina. Some of the States, as Connecticut, taxed imports as from Ma.s.sts higher than imports even from G.B. of wch Ma.s.sts. complained to Virga. and doubtless to other States. In sundry instances of as N.Y. N.J. Pa. & Maryd. the navigation laws treated the Citizens of other States as aliens.20 The Federalist Papers, designed to rally support behind state ratification, mentioned frequently the importance of a national commercial system without internal barriers. In Federalist 11, "The Utility of the Union in Respect to Commercial Relations and a Navy," Alexander Hamilton wrote: An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part.21 A common thread in the critiques of the Articles of Confederation and the arguments in support of the Const.i.tution is that the Framers wanted to promote commerce. The Commerce Clause was the solution to a specific problem: the erection of trade barriers that threatened commerce and trade. The Framers did not say that the Articles of Confederation were deficient because Congress lacked the power to set wages for workers or limit how much wheat a farmer could grow. If anyone suggested such a thing in Philadelphia, he might have been tarred and feathered. At the very least, the Commerce Clause would never have survived state ratification. Put another way, the Framers did not empower the federal government, in small ways and large, to control the economy for whatever good and promised ends federal officials might proclaim.

This understanding of the limited powers of the Commerce Clause was actually reflected in the decisions of the Supreme Court for most of our history-up to 1937. Although the Court struggled with various factual scenarios in applying the clause, and constructed different tests for that purpose, to its credit the Court mostly attempted to honor the text of the clause and the Framers' intent.

In 1824, the Court first addressed the Commerce Clause in Gibbons v. Ogden. In that case, New York had granted exclusive navigation rights to its waterways to Robert R. Livingston and Robert Fulton for boats powered by "fire or steam." Congress, however, had pa.s.sed a law in 1793 regulating coastal trade. The Court, under Chief Justice John Marshall, considered whether the power to regulate commerce included the power to regulate navigation. While holding that it did, Marshall noted that Congress could regulate "navigation" because "[a]ll America . . . has uniformly understood, the word 'commerce,' to comprehend navigation. It was so understood, and must have been so understood, when the const.i.tution was framed."22 But the Court also noted that this power to regulate commerce "among the several states" did not extend to purely internal commerce.

Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. . . . The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.23 New York's attempt to grant a monopoly over navigation rights was struck down. The limitations on the Commerce Clause acknowledged by Gibbons v. Ogden were generally followed by the Court for well over one hundred years.

Even during the earliest days of the New Deal, the Supreme Court acknowledged the limits the Commerce Clause placed on Congress and the president. Congress had pa.s.sed a number of laws and established several new agencies that centralized within the federal government decision-making on a broad spectrum of economic matters having nothing to do with commerce among the several states. In 1934, Congress pa.s.sed the Railroad Retirement Act, which established compulsory retirement plans for railroad workers. The Court invalidated it in 1935 because Congress had no const.i.tutional authority to regulate a business relations.h.i.+p between employer and employee. The Court wrote, "We feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the activity of interstate transportation. It is an attempt for social ends to impose by sheer fiat non-contractual incidents upon the relation of employer and employee, not as a rule of regulation or commerce or transportation between the States, but as a means of a.s.suring a particular cla.s.s of employees against old age dependency."24 Thereafter, the Court struck down sections of the National Industrial Recovery Act of 1933 in the Schechter Poultry or "sick chicken" case, holding that the Commerce Clause did not empower Congress to enact a law setting wages and hours of poultry workers in Brooklyn, New York. The Court also found that the chickens never left the state, writing, in part: "So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to permanent rest within the state. It was held, used or sold by defendants in relation to any further transaction in interstate commerce and was not destined for transportation to other states." The Court declared, "If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people."25 In 1936, the Court ruled that another New Deal law, the Bituminous Coal Conservation Act, was unconst.i.tutional. The act created a national coal commission, as well as coal districts, and fixed coal prices, wages, hours, and working conditions of miners throughout the country. The Court concluded: Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effects on prices; and it is insisted that interstate commerce is greatly affected thereby. But, in addition to what has just been said, the conclusive answer is that the evils are all local evils over which the federal government has no legislative control.26 President Franklin Roosevelt struck back. He threatened to pack the Supreme Court and did, in fact, begin to change its makeup by replacing retiring justices with lawyers who shared his contempt for the const.i.tution's enumeration of limited federal powers. It was not long before the Court abruptly reversed course.

It began with the 1937 decision in Jones v. Laughlin Steel Corp., where the Court ruled that intrastate activities that "have a close and substantial relation to interstate commerce [such] that their control is essential or appropriate to protect that commerce from burdens and obstructions" are within Congress's power to regulate.27 The legal stage was now set for a radical departure from the Const.i.tution's Commerce Clause text and the Framers' intent.

The most infamous of the Court's New Deal decisions in this regard came in 1942 with its ruling in Wickard v. Filburn. In this case, the Court abandoned any semblance of jurisprudential integrity and joined with the rest of the federal government in unleas.h.i.+ng what is today an endless array of federal interventions in private economic activity.28 * * *

The Wickard case involved a dairy farm in Ohio owned by Roscoe Filburn. He used a portion of his land to grow wheat. Every year the wheat he produced was used in four ways: some was sold, some was fed to his livestock, some was used to make flour, and the rest was used for seeding for the following year. The use or sale of his wheat all occurred exclusively within the state of Ohio. The Agricultural Adjustment Act of 1938, however, set quotas on the amount of wheat he was allowed to produce. When Filburn exceeded the quota, he was fined by the federal government.

How could the federal government regulate wheat that was grown, used, and sold wholly within the borders of Ohio? The Supreme Court wrote, in part: It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we a.s.sume that it is never marketed, it supplied a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions on them.29 If there was any doubt at all where the Court was taking the nation, it added that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. . . . "30 Hence, noncommercial, local activity could be regulated by the federal government if it was said to have a substantial effect on commerce, even when it did not. Consequently, virtually any economic activity could be said to affect interstate commerce.

For the last seventy years, since the Wickard decision, Congress has pa.s.sed laws and federal departments and agencies have issued regulations affecting all manner of economic activity. Rather than promoting private commerce and trade without barriers between and among the states, which was the indisputable rationale for the Commerce Clause, the federal government now intervenes in private economic activity, and stomps on state sovereignty, at every turn.

For example, in 1968, in Maryland v. Wirtz, the Supreme Court ruled that the federal Fair Labor Standards Act applied to state-run hospitals, nursing care facilities, and schools because "labor conditions in schools and hospitals can affect commerce."31 It added that if Congress had a "rational basis" for enacting the law, the Court would uphold it.32 In 1971, in Perez v. United States, the Court upheld provisions of the Consumer Credit Protection Act, making loan-sharking a federal offense despite the fact that these activities occurred strictly at the local level. The Court ruled, "Extortionate credit transactions, though purely intrastate, may, in the judgment of Congress affect interstate commerce."33 In his lone dissent, a.s.sociate Justice Potter Stewart argued that under the statue before us, a man can be convicted without any proof of interstate movement, of the use of the facilities of interstate commerce, or of facts showing that his conduct affected interstate commerce. I think the Framers of the Const.i.tution never intended that the National Government might define as a crime and prosecute wholly local activity through the enactment of federal criminal laws.34 With rare exceptions, the Court has generally held that any federal law could affect commerce and would be const.i.tutionally sustained, if Congress provides a "rational basis" for a given law's impact on interstate commerce. Of course, most laws are based on some rational basis. Otherwise, they would be irrational. That is a very low bar indeed.

In fact, there have been only two clear instances since Wickard where the Supreme Court has actually rejected Congress's attempt to further expand its power through the Commerce Clause. In 1995, in U.S. v. Lopez, Congress attempted to make the possession of a firearm near a school a federal crime with the Gun-Free Schools Zone Act of 1990. Proponents of the measure argued, among other things, that the inherent dangers of guns would increase insurance costs or deter travel, or that guns near schools would have a detrimental effect on education, a necessary foundation of commercial and economic activity. The Court found these arguments beyond the reach of the Commerce Clause. As Chief Justice William Rehnquist wrote, the possession of a firearm near a school did not meet even the Court's extremely broad view of commerce, which he summarized as follows: First, Congress may regulate the use of the channels of interstate commerce. . . . Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. . . . Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce. . . .35 Notably, even when drawing a line against Congress's power grab, Rehnquist embraced the Court's earlier distortion of the Commerce Clause in Wickard.

Moreover, consider a.s.sociate Justice Stephen Breyer's outlook in his dissent.

Congress obviously could have thought that guns and learning are mutually exclusive. Congress could therefore have found a substantial educational problem-teachers unable to teach, students unable to learn-and concluded that guns near schools contribute substantially to the size and scope of that problem. Having found that guns in schools significantly undermine the quality of education in our Nation's cla.s.srooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gun-related violence in and around schools is a commercial, as well as human, problem. Education, although far more than a matter of economics, has long been inextricably intertwined with the Nation's economy.36 For Breyer, there simply are no real limits on Congress's power to intervene in private economic behavior. Of course, state and local governments have the authority to outlaw gun possession near schools and often do. But Breyer was not alone. a.s.sociate Justice David Souter considered the Court's pre-1937 efforts to comply with the Commerce Clause's text and history "the old judicial pretension [that was] discredited and abandoned,"37 from which "the Court extricated itself almost 60 years ago" by discarding its "untenable jurisprudence."38 a.s.sociate Justice Anthony Kennedy, although concurring with the Court's holding, wrote that "stare decisis [the Court's precedent] . . . counsel[s] us not to call into question the essential principles now in place. . . . "39 It "forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy."40 Consequently, Souter rejected flatly what he knew to be the unequivocal intention of the Framers when fas.h.i.+oning the Commerce Clause, and Kennedy determined that the only judicial precedents worthy of faithful adherence were Commerce Clause opinions the Court began issuing in 1937. As for economic growth necessitating the rewrite of the Commerce Clause, Raoul Berger noted that these justices "too easily a.s.sume that economic growth necessarily is accompanied by automatic expansion of the Const.i.tution to facilitate it. Economic expansion, however, cannot alter the scope of the 'fixed' Const.i.tution, particularly when the alteration const.i.tutes a federal takeover of functions that the states were a.s.sured were 'inviolable.'"41 In fact, the industrial revolution in the United States predated the New Deal, turning the nation into the most powerful economic force on earth and creating a vast middle cla.s.s.

The second case, United States v. Morrison, came in 2000 and involved the Violence Against Women Act of 1994, which created a federal cause of action for victims of gender-based violence. If upheld, Congress would have a.s.sumed police powers belonging to the states and localities, and the authority to federalize virtually any criminal activity. However, the Court found the link between the statute and interstate commerce too ephemeral. Rehnquist wrote: We accordingly reject that argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Const.i.tution requires a distinction between what is truly national and what is truly local.42 In his dissent, Breyer noted correctly that the Court had not rejected its post-1937 precedent but he complained that it had not expanded that precedent far enough.

The Court's rules, even if broadly interpreted, are underinclusive. The local pickpocket is no less a traditional subject of state regulation than is the local gender-motivated a.s.sault. Regardless, the Court reaffirms, as it should, Congress' well-established and frequently exercised power to enact laws that satisfy a commerce-related jurisdictional prerequisite-for example, that some item relevant to the federally regulated activity has at some time crossed a state line. . . . And in a world where most everyday products or their component parts cross interstate boundaries, Congress will frequently find it possible to redraft a statute using language that ties the regulation to the interstate movement of some relevant object, thereby regulating local criminal activity or, for that matter, family affairs.43 The ruling did not slow Congress's march for ever more authority to control economic activity and the states. And, as Breyer suggested, Congress would move to regulate family matters. Most recently and notoriously, in its Obamacare decision, four of the nine Supreme Court justices were prepared to use the Commerce Clause to uphold a provision in the law, the so-called individual mandate, penalizing individuals who refuse to engage in an economic transaction against their wishes and/or interests-that is, the purchase of a private health-care policy. As written, Obamacare imposes a "penalty" on those uninsured individuals who do not purchase health insurance. These four justices would have upheld the law on Commerce Clause grounds, i