Commerce Claws And The Air We Breathe

Soon the Supreme court will decide if ObamaCare is valid law based on the Commerce Clause of the Constitution. A lot of Commerce Clause jurisprudence turns on the Wickard vs Filburn decision which said that a man growing grain for his own consumption affects interstate commerce and thus can be regulated.

But this could lead to very to some very pernicious results. Breathing air is sold in bottles. Scuba diving equipment say. Congress in its infinite stupidity could declare that only air out of bottles is breathable. Because if you are not breathing such air you are having a negative effect on Interstate Commerce which commerce Congress is trying to promote. The penalty is obvious. You must stop breathing until you avail yourself of a breathing apparatus and the required air bottles. Stupid? Of course. But there is in principle currently nothing restraining the Congress from doing such a thing under the Commerce Clause. The law would be “legal” at least according to the way the Commerce Clause is currently interpreted. Maybe Congress would be “nice” and only require you to pay a fine and of course you would have to buy your air in bottles.