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.
Sam,
First, in keeping with the subject of the thread … having read
Mespo and Mike A. (two posters whose writings are always informative and trustworthy) I don’t think this Bill will be successfully challenged.
For the rest of your post:
I’m a firm believer in the active role of government. I understand how difficult it is to insert a “public option” into what is mainly a for profit system. But I am one of those who believes that good healthcare is a right that should be extended to all citizens … the same way I believe that access to clean water is every citizen’s right. Such things are the reason, in my opinion, governments exist.
When the “for profit” system fails to do so, as this system has, then it is time for the government to step in, on behalf of its citizens and force the issue. My disappointment in this Bill is huge because it failed to truly force the issue. My disappointment in this President and this Congress is just as great.
Although I agree that they (the government) have botched a great many things, I also blame us (the citizens) for caring so little about what’s going on in our state and federal capitals. We keep sending the same fools back, election after election, and then complain about how they never change. We get what we vote for … well, except in the case of President Obama where I got someone much different from the guy who asked for my vote. I really misread him!
” … gaining more fiscal control and personal control on our lives” (Sam) – I need a more in-depth explanation of your view on what government should be before I can agree or disagree with you.
Mike Appleton said “I don’t understand the doctrine of stare decisis to mean that we treat what has been previously decided as though it were carved in stone. But I do believe that stability and predictability are critical in the law.”
I agree with you completely, Mike (at least when it comes to the highest state and federal courts). I was merely pointing out how the idea of a living Constitution is not compatible with that doctrine. I don’t believe the Constitution is a living document. I think the only way to breath life into the Constitution is through the process of Amendment. As such, the doctrine works well with my belief. However, I also believe that current and future Justices can correctly determine that the previous Court ‘got it wrong’, and if that is their belief, they have a duty to revisit the previous opinion and correct it. When doing so, they should acknowledge the precedent in their opinion, and give their reasons for doing so.
It’s when the lower courts ignore the doctrine, and the appellate courts refuse to address their failure to be bound to such, that we have real problems. I happen to live in a state that does that, and it disgusts me.
Alexander Hamilton once stated “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
Duh, I don’t understand the doctrine of stare decisis to mean that we treat what has been previously decided as though it were carved in stone. But I do believe that stability and predictability are critical in the law. The fact is that there are hardly any areas of commerce that do not have a significant interstate impact and we are never going to return to the days in which there were. I view the commerce clause as a grant of authority to Congress to legislate in those areas of the economy in which the economic impacts of policy determinations are national. Opponents of reform have harped unceasingly on the fact that health care represents 16% or more of the economy. If that’s not sufficient to fall within the purview of congressional authority, what is?
Blouise – I’m 180 degrees from you. This bill should have been scrapped and we should have started over. I don’t believe for a moment that this is about anything other than gaining more fiscal control and personal control on our lives – it is wrapped up in the “good feelings” of health care for all.
The government will screw this up, just as they have screwed up SS, Medicare, Amtrak, the postal service, etc. The money is not there and never will be without breaking the back of this country which will make us totally dependent upnon 537 people in DC – which is the end goal.
I can’t understand how those who consider the Constitution to be a ‘living’ document (when they want it to be), can also expect the Court to adhere to a doctrine that cannot and should not apply to our highest court. While I think the Court should consider stare decisis to be influential, they should not look upon it as binding. To do so would imply that Justices of our past were able to better interpret the Constitution than those of the current or future Court.
I agree wholeheartedly with Mespo. This is a commerce clause case. Despite the seeming proclivity of the current bloc of conservatives on the Supreme Court to pay only lip service to the doctrine of stare decisis, the chances that they will find the health reform legislation an instance of constitutional overreaching are virtually nil.
Duh you would think someone who doesn’t own a TV would enjoy some comedic relief sometimes. Thats why I put the smiley faces.
Sorry Paw if I er fended ya an Duh utter reeders here at this ol blawg.
I’ll tries betta nex time massa.
FFLEO,
What part of my “I think you’re heading into an inappropriate direction” warning to bdaman didn’t you understand?
Mespo,
Thank you.
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Sam,
Given the number of IOU’s in Social Security, I understand your concern.
I am in favor of a full public option and I support this Bill, though I am disappointed that it didn’t go further. I really don’t mind paying taxes … I’d never make it as a teabagger … but I don’t like to see my tax dollars misused … their misuse is an abuse of my good-will.
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FFLEO,
Thank you for emphasizing John Nugent’s post … the quote you brought to the forefront was well worth a second read.
FFLEO,
IF YOU HAVE A PROBLEM WITH MY COMMENTS ON THIS BLAWG, I SUGGEST YOU CONTACT PROFESSOR TURLEY. YOUR SOUTHERN BAPTIST ROOTS ARE SHOWING. (yes, all caps is yelling)
Innuendo creeps its way into this blawg on occasion. As long as it doesn’t get out of hand nobody seems to have a problem with it. As you can see by reading my comments above, when it appeared to be going in that direction I stated such and it stopped.
Blouise – even if there is a “lock box” on health care funds…can we really trust our federal government to keep their hands off said funds?
My fear is they’ll start taxing now for benefits beginning in 2014 and it won’t take long before they’ll be in need of funds for other projects and then will realize, “hey, we’ve got this money here. Lets shift it to this and pay it back down the road.”
Mespo – “right wing drivel”? I make a simple statement about something I’ve wondered and you take a sophomoric approach to responding to me. Your response would have commanded much more respect and consideration if you had left out the aforementioned three words.
ahhh the beauty of it.
The republicans demanded the mandate.
They put it in as a failsafe in case the bill passed.
If it did pass then they simply challenge the constitutionality of the mandate that they themselves inserted into the bill.
Its brilliant.
Simply brilliant.
I like this description of Federalism by John Nugent, accessible via the link provided in his earlier post.
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Quote:
The checks and balances built into the U.S. Constitution are designed to decentralize and thus limit the powers of government. This system works both horizontally—among the executive, legislative, and judicial branches—and vertically—between the federal government and state governments. That vertical separation, known as federalism, is intended to restrain the powers of the federal government, yet many political observers today believe that the federal government routinely oversteps its bounds at the expense of states.
End Quote
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Duh & Bdaman,
Do neither of you possess an ounce of respect for this blawg and Professor Turley? During his USA forum chat this afternoon, he invited people to venture to this blawg to comment further on HCR after he ran out of time.
Imagine that decent-minded, respectful people might access this post/blawg for the first time from Prof Turley’s invitation to learn more from a Constitutional legal scholar and then are confronted with your petty, urban dictionary, Abbot-n-Costello back-and-forth grade school gutter talk. Clearly, you staged your “two-poster” act because it would not have “worked” otherwise.
I think that the main reason you both are here is to try to purposely disrupt the discourse and try your best to discredit a fine man, scholar, and teacher. Your pathetic attempts will not succeed in your main goal, although you are successful to the extent that you foul the place with your presence when you add the mud to your sometimes-decent postings.
Blouise:
“Could someone take a moment and address the point made by Sam?”
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If there was such a point we could, but this is more right-wing drivel drawing some distinction between “promote” and “provide for.” It based on some simplistic view of the phrase “promote the general welfare” which they interpret to mean that government may only provide economic opportunities via infrastructure and the like, and not direct payments to those Congress deems in necessitous circumstances or are otherwise deserving of funding. This is not the meaning of the phrase as announced by the SCOTUS. In United States v. Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power. In Helvering v. Davis (1937), the Court again took up the General Welfare Clause in the context of the 1935 Social Security Act, and required only that welfare spending be for the common benefit as distinguished from some mere local purpose. In Flemming v. Nester in 1954, Justice Stone wrote that questions concerning the propriety of conditions imposed on spending, and questions concerning the generality of the benefits, were for the Congress to resolve–-subject to judicial invalidation “only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” The General Welfare Clause thus represents Congress’ separate power of appropriation to spend public funds to promote the public good as it sees fit subject only to constitutional requirements of generalized benefits, and rational spending classifications.
Blouise,
I made a mistake and added an “m” to your name! Sorry about that.
Blouisem
Is there a lock on any funds that the federal government controls? Why should this bill be held to a higher standard than the funds Bush sent to Iraq on pallets?
Could someone take a moment and address the point made by Sam?
We all know the travesty of the IOU’s on Social Security … is there a “lock box” on these proposed healthcare funds?