The Trojan Horse

Health Care Ruling Opens Door for Conservatives

By AJ Wagner

Then Laocoön rushes down eagerly from the heights

of the citadel, to confront them all, a large crowd with him,

and shouts from far off: ‘O unhappy citizens, what madness?

Do you think the enemy’s sailed away? Or do you think

any Greek gift’s free of treachery? Is that Ulysses’s reputation?

Either there are Greeks in hiding, concealed by the wood,

or it’s been built as a machine to use against our walls,

or spy on our homes, or fall on the city from above,

or it hides some other trick: Trojans, don’t trust this horse.

Whatever it is, I’m afraid of Greeks even those bearing gifts.’

Virgil’s Aeneid, Book II as translated by A. S. Kline

The Trojans were warned by Laocoön not to take in the large wooden horse left behind by the Greeks who had sailed out to sea. But the Trojans couldn’t resist. They brought the horse into their gates and in the dark of night the thirty (or forty) stowaways within the belly of the horse snuck out and opened the city’s gates for the Greeks who had returned to shore in the darkness. The ensuing battle ended the Trojan War with a complete Greek victory.

In National Federation of Independent Business, et al. v. Sebelius, et al. there may be a new Trojan horse in the form of the determining decision of Chief Justice John Roberts. As Democrats all but invite the Chief Justice to speak at their upcoming nominating convention one must look at what is hidden in the belly of the decision to see the harm that could ultimately be done by the Chief’s overreaching.

Jurisprudence (the system of laws) requires that when a court decides a case the decision should be limited to only those issues placed before the court and the decision should not go beyond the minimum needed to dispose of the case. Roberts has ignored these rules in the past and ignored them again when making the health care decision. Under these rules, once Roberts decided the propriety of the health care mandate as a tax, he should have stopped and gone no further. But Roberts went on to tinker with the “Commerce Clause.” It was not necessary. It was a gratuitous gift of a Trojan horse.

The “Commerce Clause” found in Article I, Section 8, Clause 3 of the Constitution of the United States says: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. This clause is often interpreted in light of the “Necessary and Proper” clause, found in Article I, Section 9 which gives Congress the authority to “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The “Commerce Clause” has been interpreted in the past, among other things, to allow Congress to pass most of the New Deal legislation under the Franklin Roosevelt administration and anti-poverty and discrimination laws in the Lyndon Johnson years. The argument goes that all of these issues affect interstate commerce and are therefore fair game for Congress under the “Necessary and Proper” clause.

Roberts’ new interpretation of the “Commerce Clause” may be devastating for the progressive agenda. Roberts decided that the “Commerce Clause” does not apply to inactivity. Quoting from the decision:

“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to ‘regulate Commerce.’”

What happens when that same logic is applied to minimum wage laws? Can an employer be forced to engage in the activity of paying a minimum wage? Can the employer be forced to require a social security number from a prospective employee? Can anti-discrimination policies be enforced in hiring and housing? Can OSHA require companies to install safety equipment? Can the EPA require scrubbers to be placed on smokestacks? Are these laws that require an activity that is currently inactive?

The Trojan horse is in the city and the gates have been breached. The question remains: Can progressives win the ensuing battle or will conservative thought take over the country?

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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