It’s Not About Health Care
These are the final days before what is almost certain to be the most monumental U.S. Supreme Court ruling in decades. Some time in this week or the next, we will find out what the court’s nine justices have to say about Florida v. United States Department of Health and Human Services—in other words, they will be deciding the constitutionality of the ‘Patient Protection and Affordable Care Act,’ colloquially known as ObamaCare, which is being challenged by twenty-six of our fifty state governments.
To hear the law’s proponents describe it, what’s at stake here is universal access to health care—which is a clear public good. To them, a Supreme Court rebuke would mean that the ‘conservative’ wing of the court had used its right-wing political beliefs to overturn the will of the people (expressed via Congress). ‘This is the worst kind of judicial activism,’ will be the refrain. ‘How dare the justices take health care away from poor, needy Americans?’
This is misdirection of the worst kind. The questions before the court have nothing to do with health care, but with the limits of federal authority under the U.S. Constitution. If the court overturns ObamaCare, it may indeed ‘take health care away from [some] poor, needy Americans,’ but that will not have been the court’s fault. If you want to blame government entities for how our health care system works in this country, there are fifty statehouses I can refer you to, since regulation of health care is their job.
You see, the question before the court is whether the U.S. Constitution permits the federal government to regulate health care. This is a question that cannot be answered correctly without a clear-headed understanding of how our federal system of government was constructed by those who wrote our constitution. In the old kingdoms of Europe, monarchs were presumed to have a totalitarian authority over their states, limited only by their imagination and practical concerns. The founders of our republic, however, built an entirely different system. Our national government was presumed to have no authorities whatsoever, except those that had been explicitly granted to it through the democratic process.
Through that democratic process—a process of review and ratification by the state legislatures that existed at the time—the U.S. Constitution became the law of the land. It is this document that establishes the particular structure of our national government, and then grants it certain particular powers. Those powers are listed, plain as day, in Article I, Section 8.
When the founders began crafting the Bill of Rights soon after the Constitution was ratified, they were concerned that it might turn this whole idea about the source of powers on its head. By listing certain civil rights, it might leave people with the impression that the federal government had unlimited authority and could grant certain rights back to the states and the people. To make perfectly clear that this was not what they intended, they included the 10th Amendment: “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.”
Health care is not listed in Article I, Section 8. The people have not explicitly granted the federal government authority in this area; therefore, it has none. Per the implied meaning of the U.S. Constitution as a whole, and the explicit meaning of its 10th Amendment, regulation of health care is reserved either to the states, or to the people (except in the limited cases where it constitutes interstate commerce).
So if you believe, as I do, that access to health care is a basic human right; and if you believe, as I do, that our health care system has serious problems, especially with regard to its accessibility for the poor and needy; then you need to take it up with your state governments. This is their area of responsibility under the federal system we have created. And this is the brilliance of the federal system: each state can (and should) find its own, unique solutions to major problems. In a county as big as ours, one size rarely fits all.
A single-payer, nationalized health care system might work reasonably well in high-tax states like New York and California, but that doesn’t mean it will work equally well in Virginia, Texas, or Alaska. Perhaps an individual mandate works fine in Massachusetts (which already has it), but it doesn’t automatically follow that it’s the best solution for Minnesota or Vermont. If we are going to reform our health care system, it needs to be reformed by each state in a way that fits its people and their unique needs and desires. This also has the bonus of allowing people a certain level of mobility between systems, if they strongly prefer one or another.
We can all agree that our health care system, wonderful as it is in some respects, has serious problems and needs to change. The question is whether a one-size-fits-all solution, applied equally to all fifty disparate states with their disparate cultures, is the right approach. And, more germane to the consideration of the Supreme Court, does the federal government even have the authority to implement such a solution at all?
Any honest read of the Constitution, and supporting documents like the Federalist Papers, makes it crystal clear that the federal government has badly overstepped its limitations here. To come to any other conclusion you would need to take a particularly novel read of the Constitution—one that adds a lot of words that aren’t there and takes away a lot of words that are. But we must reject that kind of nebulous, ‘living document’ view of the Constitution. We must accept that this document, which stands as the very foundation of our system of government, means what it says and says what it means.
If we want to add and take-away words from the Constitution, if we want to adjust the agreed-upon rules by which we govern ourselves, we have a method for doing so. It is spelled out in Article V: Two-thirds of Congress can propose amendments, or two-thirds of the state legislatures can call a constitutional convention to propose them, and they must then be ratified by three-fourths of the state legislatures. The founders knew that what they had created was good, but they also knew it was not perfect. For this reason they provided a clear, democratic mechanism by which we could change it.
So If we are going to grant new authorities to our federal government, we must do so through the same kind of process that established that government in the first place. We can’t just arbitrarily declare that we’re going to ignore parts of the Constitution that we don’t like at any given time (although this has become a popular pastime for our court justices, congressmen, and presidents; Republican and Democratic alike).
If you really think that health care ought to be a federal issue, that one solution can and should be applied across the board, then you should be fighting tooth-and-nail to craft, pass, and ratify an amendment granting such authority to the federal government. Convince your countrymen, make the case, and make it happen. After you’ve done that, then you can pass ObamaCare (or, preferably, something better). If, on the other hand, you believe (as I do) that most of the problems with our health care system are better solved at the state level, you should oppose such an amendment and petition your state government representatives to get off their duffs and start doing their jobs.
But whichever you believe, the very structure of our government—and the plain text of the constitution that established it—demands that ObamaCare be overturned as a gross overstep of federal authority. It has nothing to do with whether the law is a ‘good’ or ‘bad’ approach to reforming health care, which is a discussion for another day. Indeed, it has nothing to do with health care at all. It has to do with whether or not we still live under a limited, federal republic. It has to do with whether the U.S. Constitution is still the law of the land—and if it isn’t, what is?