I don't do a lot of long-form writing on this site, but I will start doing so once or twice a month. Here's my first such post.
Yesterday a federal judge became the fourth to issue a ruling on the Affordable Care Act, and the second to rule it unconstitutional. He found that the law's requirement that everyone be forced to purchase health insurance exceeded the regulatory powers given to Congress by the Commerce Clause in article 1 section 8 of the Constitution and amplified by the "necessaryand proper" clause near the end of the section. Here's what he is referring to:
Congress' Powers in the Constitution
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
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.
Vinson explaining his ruling
Vinson believes that the parts in red aren't enough power to force everyone to buy insurance. He said that "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain." In saying this he was agreeing with the plaintiffs (nearly all Republicans) that the insurance requirement was an unprecedented effort to regulate inactivity because what the rule says is that you will be penalized for failing to buy a product. As he put it "It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause...If Congress has such power, it is not hyperbolizing to suggest that Congress could do almost anything it wanted."
The Justice Department gave an okay response to this, but one that didn't sway the judge, saying that choosing not to buy health insurance was not "passive" but an active decision, that, if too many people did, would shift the cost of caring for people without insurance to people who have insurance, to hospitals, and to local, state and federal governments.
President Obama's administration pointed out that without the mandate, you get a big problem - those who want to game the system and make you pay for them can wait until they are sick to enroll in an insurance plan. Obviously this would be unsustainable if more than a few people tried to cheat this way, and all of the massive cost savings would eventually be lost.
Judge Vinson seized on this idea - that too many free-riders could bankrupt the system for those getting low-cost health care, to say that we should trash the whole thing ("because the individual mandate is unconstitutional and severable, the entire Act must be declared void". Insurance companies should go back to being able to drop you for any reason, raise rates at will, and deny people who have pre-existing conditions the ability to get insurance.
Even though, of course, this means they'll have to go to the emergency room to get care when they can't pay. Pushing the cost to - you guessed it - people who have insurance, hospitals and local, state and federal governments. Or the people -often the poorest and least able bodied, such as children and the elderly - can just get sick and die.
To his credit, Vinson admits this, saying that " I am aware that [this decision] will have indeterminable implications...at a time when there is virtually unanimous agreement that health care reform is needed in this country."
But still, what he's doing is saying that while it is true that we have a broken healthcare system and a terrible free-rider problem, the government's fix for the problem, which would work, can't be allowed because the government has never forced people to buy anything before, and giving the government the power to force people to buy anything is too much power. Because if they can force you to buy something, they can force you to do anything.
So that's what Vinson had to say. Perhaps he convinces you, perhaps he doesn't. Here's what a couple of republican lawmakers had to say about the situation. Republican criticisms of the law and agreement with the ruling
One, an attorney by training, said that after reading and re-reading the Constitution "it was not possible to discover in it the power to enforce an insurance mandate" because the Constitution does not grant the federal government powers not specifically enumerated there. He further claimed that the law "exploited the power of the "necessary and proper clause" in a way that would destroy any barriers that limit the power of the federal government and protect those of state governments."
Another argued that the law perverted the "necessary and proper" clause because for any law to pass the test of constitutionality, it had to be more than just convenient for executing the powers of the federal government it had to be truly necessary, indispensable and that taking a single step in giving any power that is not indispensable would give Congress uncontrollable power. He even went on to say that "any officials that tried to enforce the affordable care act in his state "should be judged to have committed treason against the state and be punished accordingly."
Actually, I've been pulling your leg - but only a little bit. Those quotes weren't from this century, or even the one before that. They were made this week in 1791. The first was from Virginia Representative James Madison. The second was Secretary of State Thomas Jefferson. They were trying to convince President George Washington to veto the Bank of The United States, the brainchild of Secretary of the Treasury Alexander Hamilton.
More background on the debate about Implied Powers in the fight over the Bank of the United States
As eminent biographer Ron Chernow explained in Alexander Hamilton, after the bill to charter the Bank of the United States easily passed the Senate on January 20th and passed the House with a wide margin on February 8th, but the vote split largely along northern and southern congressmen. The southern legislators who were mostly rich planters were supported by a number of smaller farmers in opposition to the bill because of the belief it would lead to a "subserviency of southern to northern interests" and serious questions as to whether the Constitution even allowed it.
Before ratification of the Constitution, Alexander Hamilton and James Madison had written the famous and tremendously influential Federalist Papers, explaining the proposed constitution and how the theoretical government it created would work in practice. In these papers, both had argued for an "elastic" interpretation of the constitution, with Madison saying in Federalist 44 that "no axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included." But now Madison was arguing for the opposite view, denying that the Constitution granted the federal government powers that were not specifically enumerated there. (Obviously Hamilton was furious at his friend, and in fact their friendship began an irreparable fissure.) Hamilton's first reply to these criticisms was of course to point to the "necessary and proper" clause, but Madison claimed he was exploiting the power, and because he feared Hamilton would invent "limitless activities and then rationalize them as 'necessary and proper', became a "strict constructionist".
After the bill was passed by Congress, all that was left was for President Washington to sign or veto it. He had 10 days to decide. Washington, also a Virginia planter, was inclined to sign it in to law but was worried about the harsh opposition to the bill, and had yet to veto anything. So he solicited the opinions of various people including the Attorney General and Secretary of State Thomas Jefferson. I mentioned above Jefferson's view that the Constitution only gave Congress power that was truly necessary to fulfill its functions. President Washington sent the arguments he received to Hamilton and asked for his reply. Hamilton wrote back a 40 page response.
Hamilton's defense of the Constitutionality of the Bill
Hamilton strongly believed that the minutes of the Constitutional Convention would provide "ample confirmation" of his view that the implied powers in the Constitution meant the government had "the right to employ all means necessary to carry out the powers mentioned in the Constitution". However, he couldn't quote the record directly because they had taken an oath of confidentiality.
Hamilton's basic thesis, his core idea, was that "government must possess the means to attain the ends for which it was established or the bonds of society would dissolve". He argued that "this general principle is inherent in the very definition of government and is essential to every step of the progress to be made by the United States: every power vested in a government is in its nature sovereign and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power".
He thought Jefferson's point of view entirely wrong-headed, saying that f we followed his view we'd create a "political society without sovereignty [the supreme controlling power in communities not under monarchical government; absolute and independent authority], a people without a government. He pointed out that no one was denying the fact that there are "implied as well as express powers" in the Constitution and that to argue that all government policies had to be "absolutely necessary" to the performance of specific duties would "totally paralyze the government since it is practically impossible to prove for certain what was absolutely necessary".
To support this, he gave examples from real life: When he set up the customs service, which is listed above as a power of the government, he had overseen the creation of lighthouses, beacons, buoys, etc "none of which were strictly necessary, but still very useful to society. Similarly, he argued, the Bank of the United States would enable the government to fulfill 4 responsibilities cited explicitly in the Constitution: 1. collect taxes, 2. borrow money, 3. regulate trade between the states, 4. support fleets and armies. Finally, he summed up a basic problem with the fears of Madison and Jefferson regarding "over-reach", saying that "in all questions of this nature, the practice of mankind ought to have great weight against the theories of individuals". The "necessary" in "necessary and proper" "doesn't mean indispensable so much as it means appropriate".
The point being that we've had thousands of years of government set up for various reasons, and there will always be nay-sayers and conspiracy theorists, but that common sense dictates that sometimes we just are better off giving the government the ability to do what we know we need it to do. Further, there are going to be many cases where to argue in terms of future "power grabs" not only is a logically invalid slippery slope, its just plain stupid.
The day after reading the response, Washington signed the bill into law. Hamilton later used the same arguments to recommend the U.S. do "crazy" things such as inspect manufactured goods to assure consumers of quality and thus increase sales; inspect all flour coming in to U.S. ports to improve its reputation in the world market; build public roads and canals to improve travel and the economy; annually purchase military weapons to form arsenals for our protection.
Madison and Jefferson were horrified at such ideas and spent the years after Hamilton left office trying to dismantle the impressive creation of Hamilton, Washington and John Adams - "a federal government with a central bank, funded debt, a high credit rating, a tax system, customs service, coast guard, navy, and a flexible Constitution that could meet future challenges to the country." Perhaps it was fitting then, that we nearly lost the War of 1812 thanks to Jefferson cutting back the navy, getting rid of taxes and the Bank of the U.S. and that the Treasury Secretary for Jefferson and Madison repeatedly defended what Hamilton had created and fervently supported the creation of a Second Bank of the United States, which finally happened under Madison.
Final note: here's a terrific blog that is covering the debates of Jan 20 - Feb 25 1791 in "real time": http://founders-blog.blogspot.com/2011/02/george-washington-to-alexander-hami...
And in the next post, I will explicitly discuss the idea of "being forced to engage in commerce". Hint: its a red herring and all the arguments needed to get past it were already made by Hamilton, but I'll go further.
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