A breakdown of the arguments used by the federal government versus the states. by Don Goins
(libertarian)
Sunday, January 16, 2011
The Republican controlled House of Representatives is gearing up to fulfill their primary campaign promise of the 2010 midterm elections and pass H.R. 2: The Repealing the Job-Killing Health-Care Law Act. Most members of the media, Democrats, and even Republicans acknowledge that this is a symbolic move and that the Act has little chance of becoming law. Where the battle for the Patient Protection and Affordable Care Act (ACA) is most likely to play out is with the U.S. Supreme Court.
The ACA has been challenged on constitutional grounds by 20 states. Their prime argument is that the individual mandate (the portion of the law requiring all citizens to have health-care coverage or face a penalty) is beyond the power of Congress as provided in the Constitution. The Federal Government contends that the law is perfectly within the bounds of the Constitution. To date, two federal courts (one in Michigan and another in Virginia) have upheld the Act. Another court in Virginia found the Act violated the Constitution. In that case, Judge Henry Hudson ruled that the individual mandate is an "unbridled exercise of federal police power" and "exceeds the constitutional boundaries of congressional power,"
So who's right? Let's look at both arguments.
The federal government's case relies on Congress' ability to regulate interstate commerce and tethers it to the Necessary and Proper Clause under Article I. To fully understand this, first we must explore the Commerce Clause and the Necessary and Proper Clause.
The Tenth Amendment clearly states that Congress is limited by the enumerated powers listed in Article I, Section 8 of the Constitution. The first challenge to this came when George Washington wanted to create a national bank. Strict constitutionalists, like James Madison, said creating a bank was beyond congressional authority. Alexander Hamilton countered by saying the Constitution gave Congress implied powers when combined with the Necessary and Proper Clause. The Court agreed with Hamilton in the landmark case of McCulloch v Maryland. In McCulloch, Chief Justice John Marshall found that the Constitution did grant Congress implied powers and that the Tenth Amendment rights of the states could not supersede constitutional federal law.
Throughout our history as a nation there is the Madison view of the Constitution and the Hamilton view. The Court has generally taken the Hamilton view giving Congress broad power when it comes to the Commerce Clause. It is so broad that the federal government has used it to enforce the 1964 Civil Rights Act. InHeart of Atlanta Motel v United States, the Court ruled that a hotel owner could not deny rooms to blacks because that action affected interstate commerce. Even more broad was Katzenbach v McClung where the Court ruled that a small restaurant could not deny service to blacks because the products it purchased were from another state, therefore affecting interstate commerce.
While the Court has given Congress broad discretion in regard to the Commerce Clause, it has not given infinite power. In United States v Lopez, the Court found that Congress had overstepped its authority. In Lopez, the federal government claimed that a person bringing a gun near a school affected interstate commerce. The Court disagreed and found that the activity did not substantially affect or relate to interstate commerce. The Court later reigned in the power of the Commerce Clause again in United States v Morrison.
The states argument focuses on two fronts. First that "an individual's passive status as "uninsured" simply does not implicate the traditional Commerce Clause power." Basically, the state's claim is that a person choosing not to purchase health insurance does not affect commerce and Congress is exceeding its authority in mandating that person to do so.
Yet there are examples of when inactivity has been ruled to affect interstate commerce. In Wickard v Filburn, the Court found that a farmer who was growing extra wheat for his own personal use was indeed affecting commerce because he was not buying wheat on the open market. In Gonzales v Raich, the Court again decided that inactivity affected commerce.
Based on these two cases, the government contends that a person's decision to not carry health insurance does affect interstate commerce. Its argument is that at some point in a person's life they will need health-care.
The second front is that the states charge that the government is applying the Necessary and Proper Clause incorrectly. The Necessary and Proper Clause states :
"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 phrase "foregoing Powers" refers to the previous seventeen enumerated powers in Article I; Section 8. The Court has found that the Necessary and Proper Clause, in of itself, is not sufficient to support an act of Congress. The clause is only valid when reasonably connected to another enumerated power.
The states point to the 2010 case ofUnited States v Comstockin which the Court applied four tests to validate the use of the Necessary and Proper Clause.
That the law is substantially tethered to another enumerated power: The states charge that the government has not tied sufficiently the Clause to another enumerated power.
There is a long-standing history regarding the need for the law: In Comstock, the government has a long history of dealing with federal prisoners suffering from mental illness. There is no long history of the government's involvement in health-care.
The law accommodates states interests: Virginia has enacted a law prohibiting its citizens from being forced to purchase health insurance. The ACA would not accommodate the state's interest.
The law's scope is sufficiently narrow: Unlike Comstock, the ACA would not be narrow in its scope, but rather broad.
The government has a very strong case. The Court has generally upheld nearly every case presented when it concerns the Commerce Clause. The Court has adopted Hamilton's broad interpretation of the Clause which gives Congress implied powers. Even though it has lost some due to the question of economic impact, health-care has not been challenged as a non-economic entity. Second, there is precedent that shows economic inactivity can affect commerce. Therefore the government can force a person to comply by buying insurance. Finally, the government has proven to two judges that it is applying the Necessary and Proper Clause correctly.
On the other hand, the states make a strong case for the historical record of government involvement in health-care for the nation. This is unquestionably uncharted waters for the government. Eventually this will land in the laps of the Supreme Court and we'll have to see which way it leans.
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The views expressed
in this article are those of Don Goins only and
do not represent the views of Nolan Chart, LLC or its affiliates.
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