Federalism and Health Care: A Response to Senator Orrin Hatch

In a recent speech before the Heritage Foundation, Senator Orrin Hatch (R, Utah) cited one of my column’s stating that I consider the claim of federal jurisdiction in the health care litigation to be a threat to federalism. That is certainly true (here). However, Senator Hatch then added that I had come to change my views over the course of the debate. That last addition is not accurate so I thought I would offer a brief response.

I should begin with two observations. First, most academics relished being quoted, even inaccurately. Indeed, raging academic egos would prefer an inaccurate quotation to no quotation at all. Second, Senator Hatch and I have had a number of both private and public discussions of the law through the years. I have always valued his genuine interest in the law despite our disagreements on some issues. We have not always disagreed, but when we have disagreed (such as on the D.C. Vote legislation) he has always been civil and respectful.

In his speech, Senator Hatch stated;

Only a couple of weeks ago, George Washington University law professor Jonathan Turley wrote in USA Today that the federal insurance mandate is “the greatest (and perhaps the most lethal)” threat to federalism in U.S. history. Federalism, he wrote, “was already on life support,” and this mandate could amount to a do-not-resuscitate order.

That is a startling admission from a liberal scholar who defends the health care law as good policy and last fall dismissed constitutional arguments against it as hardly worth discussing.

I am unsure what Senator Hatch is referencing concerning the dismissal of constitutional arguments, but I suspect it was based on remarks that I gave on Capitol Hill last year. On that occasion, I was asked to give the arguments in favor of the health care legislation. I agreed to appear on the express caveat to the organizers that I had reservations concerning the federalism implications of the proposals flouting around the hill. I agreed to present the argument on the other side as part of an overall discussion of the different legislative proposals.

At the event, I also stated my concern over the federalism implications. However, as I stated in the column referenced by Senator Hatch, I noted that Congress would have the clear advantage given the holdings in past cases. I stated that the Supreme Court would have to set aside some of those prior decisions to overturn the law — or engage in some pretty creative distinctions. I was certainly dismissive of those who argued that the law was clearly unconstitutional under existing precedent — as opposed to constitutional principles. I found efforts to reconcile cases like Wickard to support a challenge to be rather forced and implausible. Given the size of the health care economy and the broad definition given interstate commerce in Wickard (covering crops grown for purely intrastate consumption), I stated that existing case law would appear to give Congress ample room to pass such laws. The question is whether this assertion of jurisdiction will trigger a backlash on the Court that alters the existing case law.

During that event, I also criticized the way Congress was structuring the health care legislation and stated that I believed it would have been better to leave it up to states to opt in or opt out (at the possible cost of losing federal health care funding). That would have rendered much of this controversy moot.

Thus, I have always expressed concern over the federalism implications of the legislation, but I have also stated that the case law favors Congress — particularly on the lower court levels leading to the Supreme Court. My position has not changed as reflected in the above column. While I cannot always be right, I do try to be consistent. That is not to say that I have not changed my mind on some subjects through the years. This just does not happened to be one of them.

Ironically, the challenge to the health care legislation will rely heavily on the decision to overturning the Gun Free School Zones Act of 1990 in United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995). The Court struck down the law as clearly violative of state’s rights and federalism, which the Senate Republicans overwhelmingly supported with their Democratic colleagues.

18 thoughts on “Federalism and Health Care: A Response to Senator Orrin Hatch”

  1. Hambledon:

    Sorry, I left out the link to the Hamilton quote which comes from the University of Chicago.


    I understand that many of the founders disagreed on various things, but to imply that Hamilton had a different viewpoint on general welfare than Madison did (as the FDR court implies) appears to be incorrect.

    Now, I don’t know that the court used the information I linked to, but according to it, Hamilton doesn’t disagree with Madison. General welfare, cannot apply to the health care scheme if those are really Hamilton’s words. Unless he changed his mind.

    Hamilton wrote in Fedealist No. 1

    “The additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.”

    Liberty is virtually destroyed with the health care scheme. I have no control over my own health care!. It is an outrage. Our medical records are forcibly stolen from our hands and placed in the hands of political operatives who have no business having them.

    None of this could be what Hamilton had in mind when he said the Constitution would protect my liberty. If the feds can intrude into this most private and intimate matter it can intrude into everything and control it from Washington.

    This shows that government has become despotic and usurpatious, and no longer that which shields the citizen from abuse.

    I use Elliot’s Debates and Farrand’s Record found online at the Library of Congress.

  2. To Tootie:

    You’re quoting the wrong Hamilton text. To grasp AH’s arguments in favor of a loose construction of the Constitution, you have to read his long letter to George WAshington on the subject. But first you have to read the longish letter Jefferson sent to WAshington arguing that a national bank would be unconstitutional.

    You can probably find these online at loc.gov, or in the collected letters of George Washington.

    The truth is that the Founders and Framers did not agree and therefore cannot be referred to as if they held unanimous views. Many of them were unusually well-educated–able to read and quote Greek and Latin, as well as French and other living languages (Hamilton and Jefferson could and did both read French literature, law and philosophy)–and they had their doubts about autodidacts like you.

    The Library of America publishes a two-volume set of debates about the Constitution.

  3. Yeah, yeah, yeah. Did I wake the cry baby? Come back when you have some logic to back that up. Otherwise whining about losing is just unbecoming. Behavior one expects from a dog but not so much from a cat.

    Pst! . . . I know you remembered losing that argument. You’re the one who brought it up. Your disbelief at the clarity of the logic notwithstanding, up to the point you mentioned it I was merely answering your question.

    You keep poking at that wound though. It’ll never heal. But that’d be your choice.

  4. “then why didn’t they”?

    A) The President said, notably in his State of the Union speech and at the GOP Baltimore retreat, that converting so quickly to a single-payer plan would be too disruptive to the economy, particularly given its fragile state after the disasterous Bush administration failures.

    B) The President has never been as enthusastic about Medicare=for-all as some of us would prefer.

    C) He’s more centrist and more conservative than much of his Democrat base and far more so than the Republican hacks give him credit for.

    “Political correctness is……”

    ………nothing more than being polite, courteous. It’s nothing more than doing what most people were taught by their mothers about not calling people names, not being offensive. Whether you were taught to be otherwise is for you to deal with.

  5. BiL,

    I would never, I don’t agree to capitulating to terrorists and I am living a life that proves it. I do remember the argument and I still don’t
    believe it was as cut and dry as you asserted.
    That said, most of my info is a product of the media and if I learned more that supported your
    stance I would freely jump my ship and swim to your much larger vessel….the ‘S.S.Nasty’

  6. Yep. I got lots of ’em. It’s one reason I am often victorious, W.

    As an aside to your allusion, cats are known to cry over spilled milk. Any time you think you can logically and strategically prove capitulation to terrorist demands – especially surrounding free speech – isn’t victory for the terrorists? Feel free to try again.

  7. thanks BiL,

    but memory corrects…you said I was something blah blah diminishing returns…different kind of strategy I guess…

  8. W=c,

    Reductio is simply Latin for reduction. Reductio ad absurdum (reduction to the absurd)is a strategy of reducing the elements of an argument to the absurd, disproving a proposition by showing its logical yet absurd conclusion.

    Reductio ad nauseum (reduction to the nauseating), on the other hand, is simply a joke at Tootles expense.

  9. Buddah,
    I think you accused me of this once too…

    ‘…a strategy of reductio… ‘

    what is it and why would it ever be effective?
    (I’m not a lawyer so I wouldn’t know…but if I do it I sure want to know what it is)

  10. Tootie operating off of a false premise combined with a strategy of reductio ad nauseum? Say it isn’t so, rc!


  11. ‘The fact is that the government could legally take over the health care system with the stroke of a pen by lowering the age of elegibility for Medicare to zero by Executive Order. ‘

    then why didn’t they?

    Political correctness is a doctrine, fostered by a delusional, illogical minority, and rabidly promoted by an unscrupulous mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end. [that quote by a friend but I think it certainly does fit the ‘healthcare’ morass]

  12. Tootie

    You begin with a false premise which renders the largest part of your argument moot. The federal government did not “seize the health care industry”. The federal government can, has, does and will continue to regulate how industries operate. There is more than ample precedent. The fact is that the government could legally take over the health care system with the stroke of a pen by lowering the age of elegibility for Medicare to zero by Executive Order.

    You buy a car with seat belts insstalled because of federal requirements. Construction sites, warehouses, and other businesses that require employees to lift are required by federal law to provide safe working conditions.

    The Constitution didn’t cover those items either, but they are in place, Constitutional and have saved millions of injuries, lives and hundreds of millions of personal and business dollars.

  13. Nice post Mr. Turley.

    I’m just a commoner and my love for America motivates me to study the things everyone talks about here. No four year college degree for me. I missed that privilege.

    As I see it, and I believe the Founders felt I should be able to see “it”, there is simply no constitutional authority for the feds to seize the health care industry (which is what government payment of costs will achieve).

    I understand that case law ought never to violate the Constitution, especially where it is exceptionally clear. And in this case I believe the Constitution is very clear.

    Madison said

    “The powers delegated by the proposed Constitution to the Federal Government, are few and defined.” Federalist No.45

    The health care scheme alone would make such a Constitution impossible. Even before the scheme it was impossible to say the powers are now few and defined. In fact, they are stark-raving undefined by virtue of being completely unlimited in scope.

    No one can rightly argue that this is what the Founder wanted. And so the only conclusion must be that the health care scheme is unconstitutional as it would invade every aspect of our lives and become a form of tyranny thereby.

    Thomas Jefferson wrote in a letter to William Gattalin:

    “Our tenet ever was that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers…” http://econfaculty.gmu.edu/wew/quotes/govt.html

    That is correct and that is why the health care scheme is unconstitutional because there is no specific enumeration or implied power to authorize government to health care such that the general welfare clause would be applied.

    Jefferson makes it more clear:

    “[G]iving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. ”

    Not only would the enumerations be useless, they would be logically unnecessary. If the government can do as it pleases for the sake of the general welfare, why limit it by the enumeration?

    FDR’s Supreme Court ruled that Social Security was constitutional and they took what they believed was Alexander Hamilton’s rendering of the general welfare clause in relation to the enumerated powers and, they reckoned, it was in opposition to Madison and Jefferson.

    But I believe the court misread Hamilton.

    Hamilton actually agrees with Madison and Jefferson, but the leftists have for nearly 80 years made it appear that he didn’t. I’d like to attempt to prove them wrong.

    Hamilton writes in his Report On Manufactures:

    “The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used;”

    Here Hamilton simply says that the powers described in the Constitution before one reaches the power to tax in Article One Section Eight will paid for by taxation. In other words all of the operations of government before the clause for taxation are made provision for by taxation.

    His term “in those which preceded” refers to the powers of the government described before one reaches Art 1 Sec 8. That “which preceded” refers to the preamble and the first seven sections of article one. Hamilton says that the power to tax will cover all that stuff.

    Hamilton is not saying that the general welfare clause is bigger than the enumeration or implied powers, he is saying there is more to pay for than the powers listed in article one section eight. But those things are accounted for even if implied. He is talking about the taxation covering all the other operations (like what the president does and what the court does).

    He says the phrase general welfare is “comprehensive”. Oh, that sounds very big indeed. This must be the smoking gun. It must be the pot of gold at the end of the rainbow. It must be all that is needed then to render general welfare as big as democrats want it to be.

    But Hamilton doesn’t stop there (which is where democrats ought to want him to come to a complete stop).

    Hamilton continues:

    “No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare.”

    Oh oh. That happens to be exactly what Madison and Jefferson said. They said that the general welfare wasn’t a legislative free for all. Hamilton agrees and confirms that understanding, and as much as says it will be ridiculous to arrive at any other conclusion when he says “No objection ought to arise…”

    He never met a democrat.

    Hamilton clearly says that the general welfare clause does NOT “imply a power to do whatever else should appear…conducive to the General Welfare”.


    How will the General Welfare clause then be limited? He tells us.

    “A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.”

    In other words the general welfare clause must refer back to an authorized power expressed, enumerated, or implied. General welfare does not stand alone and cannot be interpreted alone.

    This is exactly what Madison and Jefferson say.

    In some more other words: there is no authorized, expressed, implied or enumerated power for the feds to take over health care that can be connected to general welfare.

    If I recall correctly, the first time the general welfare clause was used to tax and spend was when a road had to be constructed in order for the federal government to function. It was serious as officials could not move about without great trouble. Naturally this would affect the whole of the people, ultimately, and so the road was built. (I recall reading about this in Elliot’s Debates, but I don’t have the reference at hand).

    That is general welfare in true operation as it refers back to the appropriate sections of the constitution that require thus and so of the federal government. I presume that this wasn’t an issue of post roads because that would have already been permitted by Article One Section Eight. This road was a different matter.

    This same thing could happen, for instance, if there was a pandemic of the plague or small pox in which there was so much widespread disease and death that the federal government could not operate. At that point (like with the road) the general welfare clause would kick in as the whole of the people would be threatened, as well as the federal government. The people could be lawfully taxed and the government could lawfully spend.

    The constitution would be upheld; The republic saved.

    But even this would only be a temporary measure as far as I can see. It would not imply complete and total federal control over every other aspect of health care. It would be a singular act applied to a singular case in order for the republic to survive.

    If our current government spent zero dollars on health care in America, the republic will survive (barring any plagues or poxes). Therefore there is no general threat to the welfare of the people, no enumerated power exercised, and no connection to general welfare.

    The only threat today regarding health care is that government has put itself in moral peril and in the line of fire by tampering with the system in the first place and getting involved with providing services.

    So a comprehensive all pervasive compulsory health care “program” for all eternity, or a whole big bunch of time is no where to be found in the Constitution.

    That is how I read it. And that health care scheme might be justified by the Commerce Clause is absurd to the nth degree.

  14. Hopefully Senator Orrin Hatch now has a better understanding of your position.

    However, this happened at the Heritage Foundation where claims that Obama is a “domestic enemy” are well received … not exactly the best and brightest minds in the nation.

  15. If the federal government can prevent me from growing extra wheat for on-site consumption by my chickens, it can certainly regulate health care. The federalism arguments simply don’t hold up on health care reform. Furthermore, Republicans can hardly claim consistency on the issue. I found it ironic that the same people who profess anguish over federal regulation of health insurance also argue that insurance companies should be permitted to engage in interstate sales without state restrictions. The Republican objection to health care reform is not predicated upon a commitment to a particular view of federalism, but to a particular view of public policy, a conviction that health care should not be afforded the status of a basic human right.

  16. frankdawg,

    They do live by that motto. They are consistently insane, voting for what will get them reelected.

  17. “While I cannot always be right, I do try to be consistent. ”

    I would give my left nut and all my life savings if only we had politicians (and USSC Justices for that matter) that lived by this one simple motto.

Comments are closed.