Utah does indeed have a health care system that functions well. It functions well not withstanding the fact that it’s not managed. It’s not governed by the federal government. This is one of the great wonders of our federal system. You know, when we became a country about 200-plus years ago, we did so against the backdrop that’s informative for us still today. We became a country in part because we discovered through trial and error, through our experience as British colonies, that local self-rule works best. People govern themselves much better than a large distant government can govern them. It’s exactly why we became a country, because we learned that local self-rule works, and we learned also that there is great danger to our individual liberty with any government, because whenever any government acts, whenever it does anything to regulate our lives, it does so at the expense of our individual liberty. We become less free by degrees whenever government does just about anything but the risk to our liberty is especially great, it’s at its highest, when the government acting is a large one; when it’s a national government.

National governments, as we learned in our experience with our national government before we became a country, our national government that was then based in London, national governments tend to tax us too much. They tend to regulate us too heavily, they tend to be inefficient, they tend to be slow to respond to our needs in part because they are operating so distantly from where many of the people reside. And so when we became a country, we left most of the powers at the state and the local level. We eventually came up with this document, this almost 225-year-old document that has fostered the development of the greatest civilization the world has ever known. And in that document, we came up with a list of powers that a national government must have in order to survive and we kept that list fairly limited. We said the national government needs to have the power to provide for our national defense, to regulate commerce or trade between the states and with foreign nations and with the Indian tribes. To protect trademarks, copyrights and patents to establish a uniformed system of weights and measures. To come up with a system of bankruptcy laws, laws governing immigration and naturalization, and a few other powers, but, you know, that’s basically it. There is no power in this document that gives our national government, that gives us, Congress, as a national legislature the power to regulate anything and everything. There is nothing in this document that gives Congress what jurists and political scientists refer to as general police powers. That is, just the power to come up with any law that Congress might deem just and good and appropriate and advisable at any moment. And that, again, was because of the calculated assessment made by the founding generation that we needed a government possessing only limited, enumerated powers to protect individual liberty and to ensure that we in America could continue to live as free individuals.

Over time, we have drifted somewhat in our understanding of what those powers mean. Over the last 75 years, the Supreme Court has been applying a really deferential standard toward Congress in reviewing laws enacted under the Commerce Clause, Clause 3 of Article 1, Section 8. The Supreme Court has since about 1937, at least since 1942, said that Congress may regulate without interference from the courts under the Commerce Clause, activities that when measured in the aggregate, when replicated across every state can be said substantially to affect interstate commerce. That’s more or less the guideline that the court has given us. They are not necessarily saying that anything and everything that fits within that is necessarily within the letter and the spirit of the constitution, but that at least insofar as the courts are concerned, insofar as the courts have been willing to step in and validate or invalidate, that will be what guides the courts in making that assessment. Beyond that, the debate has to be hammered out within the halls of Congress.

Now, the Affordable Care Act, also known as Obamacare, contains an individual health insurance mandate that takes Congress’ powers to a whole new level. For the first time in American history, our national legislature has required every American in every part of this country to purchase a particular product. Not just any product, but health insurance. Not just any health insurance, but that specific kind of health insurance that Congress in its wisdom deemed appropriate and necessary for every American to buy.

This is absolutely without precedent. It is also, I believe, not defensible even under the broad deferential standard that has been applied by the United States Supreme Court since the late 1930’s and early 1940’s. Among other things, the limits that have been maintained by the Supreme Court, notwithstanding its deference to Congress under the Commerce Clause, have been limited by a few principles. First, the Supreme Court has continued to insist that although some intrastate activities

will be regulated by Congress under the Commerce Clause, some activities occurring entirely in one state, activities that historically would have been regarded as the exclusive domain of states, activities like labor, manufacturing, agriculture, and mining. Although some activities might be covered by Congress, those activities at a minimum have to be activities that impose a substantial burden or obstruction on interstate commerce or on Congress’ regulation of interstate commerce. The Supreme Court has also continued to insist that the activity in question that’s being regulated needs to be activity, first of all, and not inactivity, but it also needs to involve economic activity in most circumstances, unless, of course, it is the kind of activity that while ostensibly noneconomic, by its very nature undercuts a larger comprehensive regulation of activity that is itself economic. Finally, the Supreme Court has continued to insist time and time and time again that Congress cannot in the name of regulating interstate commerce effectively obliterate the distinction between what is national and what is local. Now, the Afford Care Act through its individual mandate effectively blows past each and every one of these restrictions, restrictions that even under the broad deferential approach that the Supreme Court has taken toward the regulation of commerce by Congress over the last 75 years or so, even the Supreme Court, even under these broad standards isn’t willing to go this far. There are very good reasons for that, and those reasons have to do with our individual liberty. They have to do with the fact that Americans were always intended to live free, and they understood that they are more likely to be free when decisions of great importance need to be hammered out at the state and at the local level. That is, unless those decisions have been specifically delegated to Congress, specifically designated as national responsibilities, this one is not.

Decisions about where you go to the doctor and how you’re going to pay for it are not decisions that are national in nature, according to the text and spirit and letter and history and understanding of the constitution. They are not and they cannot be. If in this instance we say well, this is just important so we need to allow Congress to act, if we do that, we do so at our own peril. We stand to lose a great deal if all of a sudden we allow Congress to regulate something that is not economic activity. In fact, it’s not activity at all. It’s inaction. It’s a decision by an individual person whether to purchase anything, whether to purchase health insurance, or if so, what kind of health insurance to purchase. Our very liberties are at stake, and that’s why I find this concerning.