By Evan Falchuk

The politicization of everything to do with health care reform continues.

In today’s Wall Street Journal, Fox News contributor Judge Andrew Napolitano writes about the President’s health care reform plan. He claims it is “unconstitutional at its core.”

Napolitano is a former state court judge, so I respect his credentials as a fellow member of the bar. But a first year law student could demolish most of Napolitano’s argument. And that same first year student, having done some quick research, could dispense with the rest.

Napolitano’s argument is this:

The Constitution gives the federal government the power to regulate “interstate commerce,” under something called the Commerce Clause. Medical care, in Napolitano’s view, is not “interstate commerce,” so it can’t be regulated. The sale of insurance is commerce, so Congress’ “refusal” to get rid of barriers to the sale of insurance across state lines is an “abuse of power by the federal government for political purposes.”

Heavy stuff. How did everyone miss this?

Let’s start with the question of what, exactly, is “interstate commerce.”

You’d think it was simple. Commerce is buying and selling things, and interstate means across state lines. In 1789, what was “interstate commerce” was probably pretty easy to figure out. But as the country became more connected, and the federal government more powerful, it got complicated. It came to a head during the New Deal.

At that time, the federal government started regulating all kinds of things it hadn’t regulated before. There were lawsuits challenging the government’s authority to do this, arguing that the Commerce Clause barred it. The Supreme Court rejected these arguments. It said that pretty much any economic activity was “interstate commerce.”

So when Napolitano suggests the definition of “interstate commerce” is up in the air, he’s imagining things. He somehow reads a 1995 case as showing a major change. The Court, he says, “came to its senses” when it struck down a federal law banning possession of guns in a school zone. But the case didn’t change anything. It just said that simply having a gun near a school wasn’t “commerce.”

So is medical care “commerce”? Given the decades of precedent, it’s silly to suggest it is not. You go to the doctor and pay him for his services – that’s the simplest form of commerce. And if it’s not commerce then what are we spending $2 trillion each year on? Napolitano says he has discovered a new category of not-commerce: something called “delivery of intimate services to the human body.”

Really, Judge?

But enough with intimacy. What about the sale of insurance? If pretty much everything that can be bought or sold is commerce, then isn’t the sale of insurance commerce, too?

Yes, and the Supreme Court ruled this in 1945. In that case, the Court told the federal government, in essence, that unless it passed a law that said otherwise, federal law applied to the business of insurance.

So isn’t Napolitano right that the federal government is abusing its power by sitting by as “all 50 states to erect the types of barriers that the Commerce Clause was written precisely to tear down”?

No, he’s not. Almost immediately after that 1945 Supreme Court decision, Congress passed a law that created the state-by-state system of insurance regulation we live under today. The fact that the federal government does not regulate insurance is not an example of an “abuse” of power. It is, instead, an example of the properly functioning federal system.

Napolitano may not like that the states are primarily responsible for insurance regulation – I have issues with it, too – but it is simply false to suggest that its existence is something sinister.

Your Honor, there are good and reasonable arguments against the health care reform proposals. Suggesting they are unconstitutional isn’t one of them.