by Nicole Flatow
Pop quiz: What is the central constitutional provision at issue in the Supreme Court’s review of the Affordable Care Act? If you said the Commerce Clause, you’re one step ahead of many of the tea partiers who protested outside the Supreme Court during oral arguments.
Responding to questions from staff at the Constitutional Accountability Center, tea partiers bearing signs that read “Obamacare is unconstitutional” couldn’t name any part of the Constitution that they believe the law violates.
“Well, I should know better. I should be able to answer that question and I can’t,” said one protester in a video produced by CAC, “Tea Party vs. The Constitution: ObamaCare Edition.”
“If you read the Constitution, there’s nothing in there about health care,” said another.
Others, when told that the Commerce Clause is what authorized Congress to pass the law, said the Commerce Clause was “added later” and was not part of the original Constitution.
And when the interviewer tried to correct them by pointing out that the Commerce Clause is in Article 1, Section 8 of the original Constitution, one protester responded, “There’s no use in arguing about that because I don’t think either of us know for sure.”
Watch the full video, including facts from experts who know what the Constitution actually says, below:
When Fifth Circuit Judge Jerry Smith asked the Department of Justice for a three-page single-spaced memo defending its support for the long-established principle of judicial review, Attorney General Eric Holder did what was asked and 
In 2005, Justice Scalia wrote separately in a Commerce Clause case to emphasize that conduct can be regulated if it is “an essential part of a larger regulation of economic activity….” He added, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The question in the case, 
There was one thing that was clear on opening day of the battle over the Affordable Care Act: all of the Justices seemed to want to reach the merits of the constitutionality of the individual mandate. Their problem was how to get there and how to write an opinion justifying that result.
I come here today not as a partisan supporter of the Obama Administration’s health care legislation. I am not an expert in health care economics or policy, and I am sure there are many arguments for and against the wisdom and feasibility of this legislation. I do not enter into that debate. I am an expert on constitutional law, which I have been teaching and practicing for many years and on which I have written books and articles, most to the point my 2004 book, SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME COURT. I also am not one who believes that Article 1, Section 8 of the Constitution is in effect a grant of power to Congress to regulate anything it wishes in any way it pleases. There are limits to what may plausibly be called commerce. I agree entirely with the decision in United States v. Morrison that section 13981 of the Violence Against Women Act cannot be brought within Congress’s power to regulate commerce. Indeed I sat at counsel table with Michael Rosman when he successfully argued that case. Though gender-motivated violence is despicable, cowardly, and in every state in the union criminal, a man beating up his wife or girlfriend is not commerce. Neither is carrying a gun in or near a school, as the Court correctly held in United States v. Lopez. The arguments to the contrary required torturing not only constitutional law but the English language. But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion.