The debate on national health-care is very complicated, filled with hard questions and answers such as costs, morals, etc. One question that has not been discussed much is whether national health insurance is even Constitutional or not? I’m sure the leftists won’t be too interested in this argument, but I’d like to lay out an argument for why national health-care is not constitutional.
First lets discuss where any possible authorization for any kind of national health-care spending might come from. It seems that there are three possible choices for giving Congress the authority to set up a national health plan, those would be; the “General Welfare” clause, the Necessary and Proper” clause and the “Interstate Commerce” clause. My argument is that under an originalist view point none of these clause gives the federal government or the US Congress the authority to create a nationalized health-care system.
Let’s start with the “General Welfare” Clause. The Clause, found in the Preamble, reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The General Welfare clause is a favorite of the more liberal population because it seems to give carte blanch authority to do whatever Congress wants to “promote the general welfare.” Of course, this cannot be the case, or else why include the Bill of Rights or any of the other provisions of the Constitution. In fact, during the founding of this country, many of the anti-federalists spent much time complaining about this exact clause for these very reasons. They essentially argued that the General Welfare Clause gave the Congress the power to exercise every power that they could claim was necessary for the “common defense or general welfare”. However, James Madison persuasively writes that this is not the case. He states:
“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” He later added, “With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
Thomas Jefferson also states: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
So, it seems clear from our founders most intelligent writers that the General Welfare Clause was never meant to enumerate powers given to the Congress, just lay out general powers. In fact, Congress is specifically limited to their enumerated powers and this makes sense. If we were to simply accept that Congress had any power that was necessary for the ambiguous “General Welfare” why have a Constitution in the first place? Just give Congress all power to do anything they want. The Founders, in their wisdom, knew this was not acceptable. So much for that clause.
Next is the “Necessary and Proper” Clause which reads:
The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The main argument here is that Congress has been granted power to make all laws that are “necessary and proper” for carrying out the law. However, what this clause really does it is authorizes Congress to make laws that are necessary to make the other clauses of Art. I effectual. Basically, this clause by and of itself cannot authorize national health-care, Congress would have to show that, in some way, National health-care itself is necessary and proper to execute some other power granted to Congress. For instance, they could try to argue that national health-care legislation is “necessary and proper” to “promote the general welfare”, of course we have already disposed of that so it become tautological. So, while the Necessary and Proper Clause is effective in different cases, it does not, by itself, grant Congress the power to just pass whatever legislation they want to.
In McCulloch v. Maryland (a seminal Con Law case) the court wrote:
“The clause is placed among the powers of Congress, not among the limitations on those powers . . . Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”
That last quote is telling to me. As clearly stated, if Congress tries to pass laws using the Necessary and Proper Clause that are not part of their enumerated powers, then the Court would have to find that the Act “was not the law of the land”.
Finally, the most difficult one is the Commerce Clause. Over the years (partly due to the New Deal era judges) the Commerce Clause has been expanded greatly. Almost to the point where anything that arguably could effect interstate commerce in any slight way is open to regulation by Congress. Art. I Sec. 8 states simply, “The Congress shall have power To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”.
The original intent of this clause was to prevent states from taxing goods that passed through their borders. It was meant to keep the free flow of commerce open and our economy strong. Even Madison wrote that the Commerce Clause was a power “which few oppose, and from which no apprehensions are entertained.” In other words, even the anti-federalists didn’t complain about this clause because it was clear on the face of the language that the power was meant to stop each state from running their own private economy and to encourage a national economy for the benefit of all. However, through a string of case law this has been turned upon his head to the point where the Commerce Clause is very nebulous and far reaching.
If progressives are going to win this battle this will be their primary tool to justify Congress’ action. It will be interesting to see how the justices come out, but we may come down to Kennedy casting the deciding vote again about whether we have national health care or not.
The bottom line is, if we are going to pass legislation that is going to have such sweeping ramification on our economy and way of life, it should be done through a Constitutional Amendment. This should be something that a clear majority of the people actually want. Right now it’s not even clear that a majority of people do want nationalized health-care, but Congress may try to force it through any way. A Constitutional Amendment ensures that the mandate of the people is met and that this is legislation that we can live with. We are talking about nationalized a huge percentage of our economy (I’ve read upwards of 20 percent). It will also change how we all receive care, how we view our relationship with the government in terms of privacy and liberty. To ram this through without clear moral support for the vast majority of Americans seems to be unconscionable.
August 20th, 2009 at 2:53 pm
the constitution does not apply
August 20th, 2009 at 3:37 pm
It’s the same argument as regulating the health care industry, public utilities, staffing the DOE, or building national highways. All shameful interpretations of the interstate commerce clause.
August 21st, 2009 at 7:59 am
No!
August 21st, 2009 at 8:30 am
It’s never stopped the federal government from stepping in before, why should it be different now.
August 21st, 2009 at 8:44 am
Amendment X
The 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.
August 21st, 2009 at 2:04 pm
The issue is the insurance companies, and not the Constitution. This is all pie in the sky. The issue is not whether or not health care is a right or a privilege, but whether or not it should be a commodity from which third parties can get rich.
August 21st, 2009 at 2:15 pm
So pay out of pocket.
August 22nd, 2009 at 8:53 am
Thank you for a well-reasoned commentary.
The Constitution and federalism are at stake here. The Constitution is involved in any action by Congress, the President and his/her administration, or the courts.
Our federal government is a government of limited powers under the supreme law of the land, the U.S. Constitution. This means that the government can take no action unless it is authorized by the Constitution.
Mr. McAfee is correct in concluding that whether or not the Congress has the authority under Article I, Section 8 of the Constituion will depend on an interpretation of the implied powers under the Commerce Clause which he properly cites.
There are two sides to the arguments. The advocates of a national health care system will point to Medicare, Medicaid, SCHIP, Social Security, and numerous federal programs that involve health care in some fashion and are implemented across the nation. In addition, there is the system of distribution of drugs, health insurance programs, certification of health care providers, etc.
The opponents of an expansion of involvement by the federal government in our health care will base their argument on the lack of Constitutional authority for Congress to create a national health care system. However, the opponents will have to overcome the fundamental argument that our present health care system is in reality a system that stretches across the states, i.e., it is an interstate system.
In order to reverse a nationalization of our health care system, opponents will have to eventually present a persuasive argument that the structure of our health care system is reserved to the states under the 10th Amendment.
The precedent case decided by the U.S. Supreme Court in this area is Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). This case was decided during the beginning phases of World War II and involved a farmer growing wheat for use as food for his dairy cattle.
There was a federal regulation which limited the amount of land he could use for wheat production. In that case the Court decided that the regulation was constitutional as applied to Wickard because by growing his own wheat and using it to feed his own cattle, he was reducing the demand for the interstate supply of wheat. Therefore the combination of all private farmers doing the same thing would have a “substantial effect” on interstate commerce.
The test currently used by the U.S. Supreme Court for determining whether activity is within Congress’ power to regulate under commerce clause is whether it substantially affects interstate commerce. U.S.C.A. Const. Art. 1, ยง 8, cl. 3.
More recently the Court began to place some restrictions on the Wickard expansion of the interpretation of the Commerce Clause when they decided U.S. v. Lopez, 514 U.S. 549 (1995).
Lopez involved a Congressional act which prohibited possession of a firearm in a public school zone and created a criminal penalty for violation of the statute.
The Court held that even though firearms were arguably an element of interstate commerce, mere possession of a firearm had nothing to do with interstate commerce and was therefore outside the powers of Congress.
Unfortunately, Lopez did not lead to further restraints on the powers of Congress to enact legislation under the authority of the Commerce Clause.
Again Mr. McAfee is correct that the matter of whether or not Congress has the power to create a national system of health care may eventually be decided by the Supreme Court. Unfortunately, if the current proposed expansion of the federal government into the health care arena becomes law, it will probably become so widespread and so intrusive that the Supreme Court will decline the opportunity to interpret the scope of the Commerce Clause such that Congress would have limited powers.
Thus, this is an important debate. If the American public feels that a nationalized system of health care is beneficial to our society, Congress seems prepared to create such a system in some form.
If the American public feels that the federal government is too large and too intrusive into our daily lives, then each citizen has an obligation to make that opinion known to the elected representatives in Congress.
August 22nd, 2009 at 9:02 am
Benny, thanks for mentioning both Wickard and Lopez, certainly important cases in this whole discussion. In my opinion, the Court went to far in Wickard, I can’t imagine the founders ever envisioned a world where such an interpretation of the Constitution would come about. The question we must all ask oursleves is, at what point does the Commerce Clause swallow the entire Constitution becoming not a document of enumerated and limited government, but one of general and expansive powers. At some point, and I don’t know if this Court has the gumption or desire to stand in the way of national health-care, but we must have a reasoned debate about the Commerce clause in general and reign it in.
You are right, it is important for people on both sides of the debate to step up and be heard, despite what you may think, your opinion matters.
August 22nd, 2009 at 9:12 am
I agree that Wickard was a gross expansion of the powers of Congress under the Commerce Clause. As I stated, it was decided in the context of the conditions prevailing during World War II when many commodities were being rationed and the stablization of wheat prices by the regulatory scheme was of national importance.
It is doubtful that the current Court would decide Wickard in the same manner.
However, in the period between Wickard (1942) and Lopez (1995) Congress relied on Wickard to enact Medicare and Medicaid and innumerable other pieces of legislation which intruded into many areas which arguably should have been reserved to the states.
The federal government at this point has expanded beyond any capability of the federal bureaucrats and federal employees to correctly, efficient, accountably do much of anything they are reponsible for.
It is amazing to me that given the demonstrated failures of the federal government to effectively administer programs such as veteran’s health care, to get a grasp on Medicare and Medicaid fraud and innumerable other federal program fiascos that the American public seems quite willing to allow Congress to create the largest expansion of government authority that has ever taken place in this country.
If we keep up this trend of expansion of federal authority, we can disband the state and local governments and wait for Washington to satisfy our every need. I hope I am not around to see that.
August 22nd, 2009 at 9:50 am
Is the implication to #8-10 that medicare and social security are unconstitutional? If the supremes would rule that, what do you think would be the political results?
August 22nd, 2009 at 10:06 am
Political chaos would ensue and that is why the Supreme Court will not rule on the issue.
Those two programs will not be constitutionally challenged. Even though they may be legally unconstitutional because Congress had no enumerated power to enact them in the first place, it would rend the national fabric to eliminate them at this point in our history.
August 22nd, 2009 at 10:16 am
yeah, benny, that’s what I think as well. So how could they rule any change in the age limit unconstitutional? I don’t think that’s what the final result of the legislation would be, btw.
August 22nd, 2009 at 11:05 am
I am not sure which “age limit” you are referring to.
If you are talking about the Social Security restrictions based on age (62 or 65) or Medicare benefits (65), once Congress has enacted the laws creating the programs and they have not been constitutionally challenged and voided, Congress has the power under its Spending Power to enact any additional laws or regulations “necessary and proper” to effectuate the original law.
The FAA recently reversed an age discriminating regulation that required commercial airline pilots to retire at age 60. The new rule is age 65. They had the power under their authority to regulate licensing commercial airline pilots which was created under the Commerce Clause.
Congress can do the same thing with determination of when someone will receive other types of benefits or entitlements, for example, they could decide that no one will receive Social Security benefits until they are age 70 and you don’t get Medicare until age 75 or maybe they want to put everyone under Medicare at birth (or possibly even from conception). These would be constitutional under the Spending Power so long as the underlying program remains constitutionally intact.
August 22nd, 2009 at 11:14 am
or congress could expand medicare to individuals regardless of their age, using the same metric.
August 22nd, 2009 at 3:15 pm
First are we talking government run single payor health care central housed in washington on k street? That shifts the argument for health care reform into the utter extremities. At the time of the writing of the constitution there wasn’t much in the way of health care, doctors, or a pharmaceutical, biotechnology, or medical device industry, period. It wouldnt be an issue on their mind. The colonies were 95 percent agricultural(thank the East India Trading Company and British Parliment). Not the 5 percent agricultural country we are today. The general welfare clause may sound most appropriate, but frankly the constituition doesn’t apply well to this type of problem. Health care has so evolved in the intervening centenium that its a de novo problem for the constitution to ripely apply. But its a reality all the same, and obama’s analysis is that good health care for the general population is both economically necessary and the right thing to do. Surely medicare(federal) and medicaid(states with partial federal funding), to function well, as ongoing government programs needs a fix also. You might add a constitution to remain competent clause and a constitution to remain relevant clause. I don’t think conversely you can use the constitution to torpedo health care either. For the Federal Government to be “feasant” and not malfeasant, its an issue it does need to address. Legal entities, even government seem to evolve and push the envelop in so many ways and health care co-evolved with it to become more and more an problem for the people. Will the government be “feasant” over it or malfeasant?