The Constitution matters – part one

David Rivkin

When Lee Casey and I titled our most recent Washington Post article Illegal Health Reform, there was little question in our minds that dissension and possibly furor would ensue. The debate concerning the merits of such reform has already frustrated heavily invested proponents, and now comes the question of legality.  But aside from the expected personal attacks and typical rants, we were disappointed by the fact that a large proportion of disagreements with our position seemed to stem from reflex reactions based on  “sound bites” permeating the media.  I must admit I was looking forward to a robust debate derived from careful inspection of what the Constitution actually says and from examination of the relevant Supreme Court decisions.  Forgive me for being professorial, but I would like to address a number of comments on the article, so that we can foster a productive debate and reduce the shouting matches.  Forgive me further for being an amateur psychologist: I believe I understand the furor of the health reform protestors and can shed some light on their outrage.

Individual mandate issue

Our obvious concern with the proposed health care plan, specifically the “individual mandate,” is that the Constitution fundamentally limits federal powers.  This was done for some very important reasons – in an effort to protect individual liberty and prevent the rise of an excessively strong governmental authority, the Framers deliberately chose to disperse governmental authority, both vertically (with the States retaining formidable authority, wielding what is known as the general “police powers”, and the powers of the federal government limited and the boundaries clearly defined) and horizontally with the federal government’s powers divided among three separate and distinct branches (Congress, the Executive Branch and the judiciary).   This is the show-stopper, then:  the federal government’s exercising of the police powers that ought to be properly reserved for states would effect an enormous constitutional deviation; it would fundamentally alter the entire constitutional scheme.  Such a step, even if the majority of Americans today desired such a change, ought to invoke the amendment process outlined in the Constitution itself.

A good number of comments on Illegal Health Reform expressed strong opinions that, since health care has an economic consequence—one of the few areas in which Congress can exert authority—it can legislate at will, i.e., exceed the limits formerly placed on its authority.  As we pointed out in the article:

“in two key cases. . . the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers [of the Constitution] denied Congress the type of general police power that is freely exercised by the states.”

Our sense is that the proposed House legislation sounded an alarm in the subconscious of citizens who have internalized the individual freedoms protected by the Constitution and it led to the outcries in today’s town hall meetings.  Instead of silencing the protestors, we need to articulate and address the disconnect that has spurred their mobilization.

Does the end justify the means?

Another large segment of comments, on the surface, could be categorized as “the ends justifies the means.”  But several readers used the Preamble of the Constitution to assert that Congress can do what it will “in the public interest” and to urge lawmakers to take action based on ethical, moral, or compassionate grounds.  Unfortunately, this argument contributes directly to the misinterpretation of the Constitution and accelerates the already advancing tide of Constitutional drift.

The Preamble does not give powers; that is why it is called a Preamble.  To be sure, one can consult the Preamble in construing the meaning of the specific grants of authority vested in the federal government.  For example, some constitutional scholars have argued that many congressional spending-related decisions, particularly the ones that earmark federal largess to a specific personal entity, are inconsistent with the Preamble’s “public interest” language.  However, nothing in the Preamble to the Constitution, or for that matter, in a Preamble to any statute, or even a private contract/agreement, can alter the plain meaning of the specific provisions that follow.  For asserting this, one can be denounced as mean-spirited, selfish, or tagged with any number of evil-mongering adjectives.  But the facts, stubborn as they are, are still facts.

Has Congress already intruded?

Several arguments, raised by the commenters, stemmed from flawed analogies to social security or auto insurance.   The “social security” argument, that this is an example of an individual mandate and therefore Congress has already intruded into individual mandate territory, is not valid.  Social security is a tax levied on the employed, and is partially funded by the employer.  Congress can constitutionally impose all sorts of taxes, and Social Security tax is one of them.  It is worth noting here that, by the way, there is no individual mandate to use social security; all that the government is requiring citizens to do is to pay social security tax on their wages.

The “auto insurance” arguments have cited the states’ unwavering ability to require the purchase of collision insurance—i.e., to mitigate harm to another, not to protect oneself. This has an appealing, but faulty analogous reasoning: “If the state can enforce the purchase of auto insurance, why can’t the federal government enforce the purchase of health insurance?” Key facts about our system of government, as enumerated in the Constitution and taught throughout the public school system, are overlooked in this argument. These facts, once revealed, quickly eliminate it.

Many of us get so wrapped up in paying for auto insurance and keeping our driver’s license up to date that we seldom consider whose authority mandated these apparent restrictions on individual liberty.   As explained in our op-ed piece and reiterated above, the States have general police powers which can be used to support mandates that exceed those that can be put in place by the federal government.  It is also worth noting that a lot of readers apparently misunderstand how even state-level automobile insurance mandates really work.  In this regard, a person who fails to purchase insurance and does not pay a fine for it, cannot register his car.

While this is unpleasant, nobody’s constitutionally-protected liberty is infringed.  This is because there is no constitutional right to register cars or obtain any other license or regulatory approval from the government.  To be sure, the government cannot be arbitrary or capricious in how it goes about issuing such licenses or approvals; it also cannot discriminate among citizens in this process (for example, it cannot treat men and women applying for car registrations differently.)  But, it can attach any conditions it believes to be in the public interest, like the automobile insurance, to the license.

Should we be so quick to give up rights?

I would invite the readers to consider the consequences of allowing the federal government to impose an insurance purchase mandate on individuals.  If the federal government can do this, nothing prevents it from imposing an array of other mandates, all seemingly connected to the goal of improving public welfare and having a stronger economy.  These would range from requiring people to buy a certain quantity of healthy food items, e.g., vegetables or fruits, to the purchase of sports club memberships.  I very much doubt that, constitutional issues aside, even the most dedicated proponents of the health care reform would want to live in a country where the government can control peoples’ lives to such an extent.

To ensure the continued liberty of the American people, any law created by the federal government must be evaluated for its adherence to the Constitution. This is why the Constitution was created. This is why it matters, if you will. Put plainly, if any law, including the proposed system for national health care, does not fall within the boundaries of the Constitution, it cannot be enacted.


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