A Republic in the Balance

Next week, the United States Supreme Court will hear arguments in Florida v. United States Department of Health and Human Services—a case that will quite possibly be the most important to come before the court in my lifetime. The ruling, which is not expected for several months, will tell us whether or not the United States of America will remain a federal republic, or whether the great experiment is effectively over.

Despite the official name of the case, a total of 26 states—a majority of the union—have joined against the federal government. At stake is whether that federal government has the authority to mandate that all citizens of the United States purchase or obtain health insurance.

Obviously, the answer is ‘no.’ The founders crafted the U.S. Constitution so as to only grant the federal government particular, enumerated authorities (which can be found in Article 1, Section 8). In fact, because the government had a short list of things it could do, many of the document’s authors did not think it necessary to include a Bill of Rights. Why should we need to say that people have a freedom of speech (for example) when the government, limited to the enumerated powers, would be theoretically unable to limit that freedom anyway? Alexander Hamilton explained in Federalist #84:

“For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

Indeed, when the nascent U.S. Congress later crafted the Bill of Rights and passed them as a set of ten Constitutional Amendments, they were rightfully concerned that the additions would be misconstrued. They did not want future leaders of the American republic to think that they could do anything not prohibited to them by the Bill of Rights—an approach that would turn the whole intent of the Constitution on its head. To eliminate this confusion, they explicitly clarified that the federal government had only those authorities granted to it by the Constitution, and that all else was off-limits and reserved either to the states or to the people:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” – Ninth Amendment, U.S. Constitution

“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.” – Tenth Amendment, U.S. Constitution

Pretty straightforward, if you ask me.

States can, of course, implement a health insurance mandate if they wish. Massachusetts has already done so with the laws they enacted under then-Governor Mitt Romney (R-MA). But the Tenth Amendment allows for this, reserving non-delegated powers to the states or to the people. It does not allow for an ostensibly-similar federal mandate, since the federal government and state governments have different areas of responsibility under the Constitution.

The best argument that proponents are able to come up with is that health insurance falls under the regulation of interstate commerce,  which is one of the enumerated powers. Well, it sometimes does, but not always. Can the government regulate something that might be interstate commerce, or only things that actually are? And does requiring the purchase of a product or service fall under ‘regulation’ anyway? If so, it’s a novel part of the definition that didn’t exist before. The federal government mandates that all automobiles sold in the United States meet certain highway safety standards, which is regulation of something that is almost always interstate (or international) commerce . . . but it has never before attempted to mandate that all citizens buy a car.

The federal government has long played fast-and-loose with a plain-text reading of the enumerated powers and the 9th and Tenth Amendments, but never has it gone this far. Never has it claimed for itself the authority to mandate the purchase of a product or service merely because you exist. If it can do that, it can do anything. Today it’s a dubious health care law, but what will it be tomorrow? How long before General Motors finds itself teetering on bankruptcy again, and the government mandates that we all buy Chevrolet Volts (for our own good, of course). If it has the legal authority to mandate the purchase of health insurance, then it has the legal authority to make us purchase anything it deems necessary for any reason that seems expedient at the time.

There is no doubt that our health care system needs work, but our elected officials are bound by the U.S. Constitution—heck, they’ve all sworn an oath to defend it against all enemies, foreign and domestic! We must constrain our health care reform efforts to things that our government is authorized to do, or we must go through the process of broadening the authorization (by amending the Constitution through one of the two mechanisms available to us under Article 5).

Or, better yet, leave state matters to the states. The federal system (and the ancient Christian principle of subsidiarity) is a system built on the assumption that policy is best implemented at the smallest level possible. Instead of trying to implement a federal health care policy meant to serve the citizens of our incredibly diverse fifty states, let each of the fifty states do what works best for them and their people. Perhaps a health insurance mandate is a good idea for Massachusetts, but it doesn’t automatically follow that it’s a good idea for Virginia, or Texas, or Montana, or California, or Alaska. That’s why we have a system built to allow Massachusetts, Virginia, Texas, Montana, California, and Alaska to craft their own laws for their own people based on their own needs, wants, and cultures.

When the Supreme Court rules on the mandate later this year, it will decide whether or not federalism—and the Constitution that established it in this country—is dead. I hope it isn’t, because my studies of American history, western political theory, and Christian theology all lead me in unity to the belief that the best government is the one that is close to home, tightly limited, and erring on the side of respecting the self-determination of its citizens. If the mandate stands, we end up with a distant bureaucracy, unlimited in its powers, wielding a totalitarian authority over its people. We had that kind of government once before here on this continent; we fought a bloody war of independence to expel it from our shores and then embarked on an attempt to do something different.

So what will it be, honorable justices of the Supreme Court of the United States? Does the great experiment in federalism, checks and balances, and self government live on? Do you abide by your oaths to uphold the Constitution when your brethren in the Congress and the White House seem to have forgotten them? Or shall the Constitution be a dead-letter, a mere relic living in happy memory? It is up to you. Choose wisely.

Scott Bradford has been putting his opinions on his website since 1995—before most people knew what a website was. He has been a professional web developer in the public- and private-sector for over twenty years. He is an independent constitutional conservative who believes in human rights and limited government, and a Catholic Christian whose beliefs are summarized in the Nicene Creed. He holds a bachelor’s degree in Public Administration from George Mason University. He loves Pink Floyd and can play the bass guitar . . . sort-of. He’s a husband, pet lover, amateur radio operator, and classic AMC/Jeep enthusiast.