Below is today’s column on the constitutional challenges to the health care legislation. I will be participating in a live chat at 1:00 p.m. at the Forum with USA Today.
The new health care law has states and citizens lining up — but not quite in the way President Obama or Congress had hoped. Across the country, lawsuits are being filed that could have sweeping implications, not just for health care but our constitutional system. To date, 14 states have joined the stampede to the courthouse to challenge the legislation. One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states’ rights in U.S. history.
With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states’ rights would be left if it prevailed.
Hypocrisy rears its head
To get to the constitutional question, you first have to strip away the deep layer of hypocrisy in Washington. Many lawmakers now screaming about the sanctity of federalism voted for prior laws that were overturned by the Supreme Court on federalism grounds. Moreover, few of these mostly Republican members uttered a word of support when states opposed federal interventions on medical marijuana and physician-assisted suicide during the Bush administration. The guarantee of federalism was essential to ratifying the Constitution and embodied in the 10th Amendment guaranteeing that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Historically, however, federalism is a constitutional rule honored largely in the breach by Congress.
For states’ rights advocates, the Constitution is like a contract that is openly violated by one party with impunity. On paper, the states remain sovereign powers, while in reality the federal government appears able to dictate everything from the ingredients of school lunches to speed limits. Congress now routinely collects taxes in order to return the money to the states with conditions on their conforming to federal demands.
There is no serious basis to challenge the right of Congress to impose a national medical plan on the states. In 2008, this country spent $2.3 trillion on health care — representing 16.2% of our gross domestic product. This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter.
To be sure, the Supreme Court has stretched the meaning of interstate commerce to cover such things as the farmers growing wheat for their own consumption. Indeed, many long ago wrote off federalism as a rather quaint and outmoded concept. In Wickard v. Filburn (1942), Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market. However, this was at least a traditional commercial activity. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.
‘Inference upon inference’
When Congress has ventured outside of traditional commercial areas, it has run into trouble. For example, in 1990, Congress criminalized certain conduct as part of its Gun-Free School Zones Act. The Supreme Court struck it down in 1995 and held that such laws did not substantially relate to interstate commerce. The court refused to “pile inference upon inference” to find an interstate claim.
This brings us back to that 18-year-old Virginian. Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.
Though strong arguments can be made for health care reform and the individual mandate, these are matters that should not be decided by mere fiat of Congress but rather by the courts. Federalism was already on life support before the individual mandate. Make no mistake about it, this plan might provide a bill of good health for the public, but it could amount to a “do not resuscitate” order for federalism.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
Joe-that’s an argument I’ve had with my sorry excuse for a Congresswoman – promote vs. provide the general welfare – big difference.
Mespo:
I didnt know that promote the general welfare meant to provide for others welfare. Learn something new every day.
Although I am late to the party, I have to agree that Mespo and RCampbell hit the nail on the head. I have to disagree with Prof. Turley’s take on this legislation. The health care costs that we all have to absorb if someone is uninsured effect the interstate commerce substantially.
kentgrad:
Not sure what they are teaching in Ohio, but here in Virginia we were not aware that, “The purpose of the Constitution of the United States is to limit the power of the Federal government.” In fact, just a cursory reading will reveal to those, like you, who have an apparent dis-affinity for reading, that the document clearly establishes a strong federal government. Under the predecessor Articles of Confederation and (not so) Perpetual Union, the federal government was a toothless tiger, but even in 1781, the nation’s leading thinkers (fresh off the Revolution, I might add) realized the limitations of governing so vast a nation with Vermont-style direct democracy or a patchwork of state laws that varied with the crossing of every river or mountain range of note.
You may be referring to Madison’s Amendments comprising the Bill of Rights, which did affirm and establish zones of protection for individuals from federal power. However, no fair reading of the document, taken as a whole, leads one to any conclusion other than HCR is a national solution to a national problem of the exact sort that the founders envisioned in their directive to the new government to “promote the general welfare.” A familiar phrase, I hope, even for those in Ohio. 🙂
My thoughts of all this have centered around what I expect to happen…I expect that as they government begins to collect the taxes now for the benefits that are due in 2014, we’re going to experience another social security type of situation where we realize there was no “lock box” for health care either. I fear the money will become part of the general fund with IOU’s placed in this socialist program – and we suddenly have dug an even deeper hole than we are in now.
Professor, like several other commenters, I’m curious about your thoughts on the idea that the taxing power may offer surer support for the individual mandate in the health care bill than the commerce clause. The tax on the uninsured, while clearly an incentive to do something, is also designed to raise revenue. . . .
We are talking about the United States Navy, they have a fleet of them, some nuclear.
bdaman,
Yes, but I think you’re heading into an inappropriate direction.
Duh then can you tell me what’s long and hard and full of seamen?
bdaman,
They’re talking about “seamen” not “semen”. 🙂
An act for the relief of sick and disabled seamen.
They have specialist for that now 🙂 but it’s not covered under the new mandate.
UPDATE
Act of 1843, Chap. 99. An act amendatory of “An act for the relief of sick and disabled seamen.”
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the provisions and penalties of the act of the sixteenth of July, one thousand seven hundred and ninety-eight, entitled ” An act for the relief of sick and disabled seamen,” be, and the same hereby are, extended to the masters, owners and seamen of registered vessels employed in carrying on the coasting trade ; and the secretary of the treasury is authorized and directed to issue such instructions to the collectors of the various ports as shall secure the collection of hospital money from said seamen, masters and owners. [Approved, March, 1, 1843.]
John Adams did in fact sign into law “Act for the Relief of Sick and Disabled Seamen”. He did so on March 2nd 1799. It didn’t apply to just any sailors, but only those “officers, seamen, and marines of the Navy of the United States”.
http://books.google.com/books?id=_683AAAAMAAJ&dq=%22An%20Act%20for%20the%20Relief%20of%20Sick%20and%20Disabled%20Seamen%22&pg=PA497#v=onepage&q=%22An%20Act%20for%20the%20Relief%20of%20Sick%20and%20Disabled%20Seamen%22&f=false
This cannot be considered as precedent because members of the military don’t have the same rights as the average citizen. They were property of the United States.
Sam,
If what’s being quoted is true then it was all sailors … private companies etc.
mike in dc
Didn’t John Adams mandate that sailors purchase insurance?
=================================================================
I’ve seen that on a lot of different sites … if true … precedent?
Mike in Dc – don’t know about that, but if he did, were the sailors government employees? If they were, that would be different than requiring us to do so. We don’t work for the government. If they weren’t government employees then Adams was wrong, as our government is now wrong.
rcampbell,
To leave Adams and the Federalists for Jefferson/Madison Dem-Rep was probably made easier by his original fear of monarchical rule. I know he helped to draft the Bill of Rights.
And you are right … the guy fought for independence, served in Congress, was a delegate to the convention, elected as a gov. and a V.P. yet he is forever remembered for gerrymandering.
No wonder they all worry about their legacy.
Thanks for the info … now I’m even more curious about his life.
Didn’t John Adams mandate that sailors purchase insurance?
Blouise
I did some Gerry-checking as well. I found it interesting he changed political parties during his poltical life. He was one of John Adams’ delegates to France, got mixed up in the XYZ Affair and on his eventual return to the US, abandonned the Fedreralists and joined the more progressive Democratic-Republicans, the party founded by Jefferson and Madison. It was under Madison that he served as VP. It’s certainly noteworthy (perhaps shamefully so) that his name is derivation of the term gerrymandering.
Sam,
I figured I’d better google the guy in case my memory was wrong and before somebody landed on me … memory had not served me well in that I forgot he served as V.P. so he obviously came to terms with his objections.
There seems to be so much misinterpretation of the Constitution out there or perhaps just misunderstanding and I wonder if some of it stems from the “lore” of our past.
I’m going to find a good book on ol’ Elbridge to learn what path he followed after the Constitution was ratified … how he came to terms with his initial objections.