Health Care Reform Constitutionality: Congress, Use the Article V Safety Valve

by Paul Galvin,

By following this wise counsel, Congress could settle the legitimate question whether it has the constitutional authority respecting health care reform. It can do this by using one of its undisputed powers, namely, proposing constitutional amendments under Article V.

In writing their Constitution the Framers set out a list of the “few and defined” powers (Madison, Fed. No. 45) that the people and the states were willing to cede to the then newly created government. That list but that list only, a point of instruction underscored by the 10th Amendment. Two powers on that list, the Interstate Commerce Clause (ICC) and the General Welfare Clause (GWC), read today as they did in 1787, never having been amended. Similarly, the requirement of the Article VI constitutional oath of office to support “this Constitution” – meaning of course the written one – has remained in force and unchanged for the same period. With that background, compare these congressional behaviors.

Situation 1. The 65th Congress (1917–1919) believed it was necessary to ask the American people for authority (by proposing the 18th Amendment) to regulate “intoxicating liquors,” despite the then well-established, common practice of manufacturing and transporting alcohol throughout the country. The 73rd Congress (1933–1935) believed it too should ask the American people for permission (by proposing the 21st Amendment) to repeal/undo the same authority it had just received several years earlier.

The business of manufacturing and distributing alcohol traces its history to the American colonial period. By 1917 (the year the 18th Amendment was proposed), the alcohol industry was well-entrenched into the American commercial and cultural fabric. Despite this industry’s long-standing interstate business practices and in-place multi-state distribution networks, two Congresses, the 65th and the 73rd, uncertain of their authority and choosing to err on the side of freedom, believed that asking the permission of the people and the states was necessary, and certainly politically prudent, before venturing into areas not expressly delegated to Congress.

Situation 2. The 103rd Congress (1993–1994) believed no such permission from the people was needed to regulate the entire American health care system, a transactional business complex easily dwarfing by any measure the alcohol industry. (While not every American consumes alcohol, every American consumes health care.) That proposed legislation was never enacted. Its failure resulted, not because Members took principled stands against the 1993–1994 bill based on constitutional limitations and faithfulness to their oaths of office to support “this [the written] Constitution,”but rather because of political in-fighting and a then-growing general public distrust. That so much of the work on this bill was done behind closed doors, not unlike what is happening in 2009, contributed greatly to its undoing. If congressional leaders could have rounded up the votes, that Congress, like the present one, would have enacted health care reform regardless of whether the bill had constitutional justification or not.

Recently the House rounded up those votes. The current 111th House (2009–2010), ignoring the measured precedent of the 65th Congress, tossed to the wind any consideration of the Constitution’s very purpose – limitation – and passed a bill that would fundamentally change the relationship between the people and their created government by giving the latter unprecedented control over the very health of citizens.

Members of the 65th Congress and those of the 111th Congress each pledged on oath to support the same Constitution. Why then the difference in behavior? The former Congress understood its assigned limited role, respected the people as self-governors, and in the face of doubt as to authority asked permission. The latter gives no regard to those limitations, no longer believing it needs any permission from its creators, the people and the states, to do as it wills. Congress today views itself as the people’s master, having morphed into the British Crown of the mid-to-late 18th century.

It is often repeated that the health care reform legislation will federalize one-sixth of the economy. The correct fraction is 1/1, or 100%. If the ICC justification for constitutionality is accepted in authorizing this legislation, or cap-and-trade, or any other federal over-reaching (and there’s plenty of that), Congress will know that it can legislate on anything. There is no activity in today’s world that cannot in some tenuous or remote fashion be tied to interstate commerce. Consider the sad story of Ohio farmer Roscoe Filburn who used wheat he had grown as feed for his livestock (i.e., a wholly intrastate act), a simple act that was deemed (in 1942, by the Supreme Court no less) to have a substantial effect on interstate commerce. A Congress that is not objectively limited is a priori an unlimited government.

Even without knowing all of its ins and outs, most people understand the Constitution to be a document having a two-fold objective: to empower the federal government to do that which the states and the people could not effectively do on their own, but to limit it from doing anything else. The Constitution’s over-arching limitations are seen by the people as its strength.

With good reason, the people are now experiencing a mental disconnect: Why, they ask, would the Framers have gone to such lengths to carefully set out the government’s few and defined powers if two of those defined powers, the Interstate Commerce Clause and the General Welfare Clause, could be used as escape hatches through which Congress could slip out from all of the Constitution’s limitations. Because any contemporary financial or business transaction “might” affect interstate commerce, or because any congressional action could be argued as being within the even more elusive term “general welfare,” nothing would be beyond the reach of Congress, including those areas which had long been considered the exclusive realm of the respective states, most notably intrastate commerce. Can these open-ended interpretations be honestly ascribed to the 1787 delegates whose objective was finding a workable pathway between the inflexibility of the Articles of Confederation and the natural skittishness and suspicions of the states towards any proposals removing parts of their sovereignty? Would the states have ratified the Constitution if they knew that their very undoing might have been an intrinsic part of it? Were the Framers so foolish as to write inherently conflicting provisions, those which limit side-by-side with those enabling the means of evading those same limits? Projected to a natural end point this far-ranging view of these clauses means that there is no natural end point as to what Congress may make compulsory upon the American people.

The House’s narrowly passed health care reform bill conforms with the escape hatch view. How else to explain provisions criminalizing simple consumer decisions such as choosing not to buy insurance. Americans know in their gut that whenever the heavy hand of government is involved – the IRS, other named federal agencies, plus the countless federal bureaucracies to be formed by virtue of this bill will all have civil and criminal enforcement authority – their liberties are imperiled.

Who’s right? One group says these clauses are being distorted beyond their intended purpose, attempting to render moot and meaningless Madison’s “few and defined” descriptor of Congress’s powers, correctly observing that the 10th Amendment is still a vital part of the Constitution. Another group says these clauses may have a limitation somewhere out there, but so far we’re not even close to it. Not for the Supreme Court – whose rulings are not among the Supremacy Clause’s listed authorities – this is a matter for the people, the states, and their created government to solve.

A Way Out.

Congress would go a long way in regaining the esteem of the American people by following the precedent of the 65th Congress: Propose an amendment to the Constitution enabling Congress to regulate health care. If approved by 38 states, Congress can then go about its business without the rancor and disharmony being generated when constitutional authority is questioned.

Time after time, Americans have proven themselves to be fair-minded, reasonable people. If proponents can make their case, the American people will listen and cede the necessary authority to Congress. If Pelosi, Reid and other health care reformists are to be believed – that Americans want Congress to deal with this matter – proponents have nothing to fear, and could only gain, by getting the approval of the people. Indeed, with such support, Congress would be on a solid, criticism-free footing when it writes post-amendment legislation.

During the future debates on this proposed amendment a meaningful review of the proper role of government will be explored, and a true measure of what Americans expect from their federal and state governments will emerge, including clarification of how narrowly or broadly the ICC and the GWC should be interpreted. When this process concludes, Americans will have an answer to a long-simmering debate (begun in the mid-1930s) on the direction which America should take: towards the constitutional republic structure of the Framers, a model that enables/defines American exceptionalism; or towards a collectivist, top-down model in the mode of most of the world’s past and present governments (e.g., European Union). Is the Constitution a document whose terms have a known meaning, applied as they were commonly understood when written; or is it a living document with changeable terms and meanings? This is a matter for the people to decide.

Proposing an amendment would carry no political risk. To the contrary, it would be seen as an act of great respect to/of the people. Asking permission is the reasonably expected thing to do when constitutional authority is questioned. On the other hand, moving forward with health care reform legislation based on the dubious authority of the ICC or the GWC, particularly in the face of principled arguments in opposition, could only be seen as an act of defiance of the people.

By not proposing an amendment, and by failing to pursue common sense in seeking the people’s permission, Congress will cause the country to be fundamentally tested and unnecessarily stressed. Government will increase enormously, but not in the pursuit of freedom. Lawsuits galore will result from this legislation. Resentments between the generations (e.g., the healthier young versus aging boomers), as well as between those who are forced to pay for those who cannot or will not pay, will intensify. States, some currently in the process of amending their own constitutions to resist any overall federal health care mandates (e.g., Arizona has moved the farthest on this score), will react in ways which cannot be predicted. State nullification resolutions and initiatives will multiply. Individuals will deliberately refuse to buy the required insurance to spite/taunt federal authorities into prosecuting them criminally with fines and jail time. Fellow Americans, using jury nullification, may refuse to convict. Clashes are unavoidable under the present course. The Law of Unintended Consequences will be in full force. There is no good reason to subject the country to this disorder, the dimensions of which simply cannot be surveyed, when a reasonable, orderly alternative exists. Congress: use Article V, propose an amendment, seek the necessary permission, preserve civil discourse.

Congress has no assurance that every court which hears the constitutional arguments will agree that the ICC authorizes this legislation; the DOJ may lose many cases. But there’s a larger risk for Congress: judicial rulings aside, if the people are so opposed to this legislation today, and greater numbers will oppose it as the Law of Unintended Consequences asserts itself, it may be rendered void from public rejection. The REAL ID Act (2005) offers a recent example.

Article V, the Constitution’s amendment procedure, was written for unforeseen developments. The Framers realized that circumstances beyond their anticipated vision – here, differing perspectives on the breadth of the ICC and the GWC – might emerge, writing into the document a specific process through which differences could be ironed out with civility toward one another. The 65th Congress and the 73rd Congress successfully took advantage of this constitutional safety valve and turned aside public discontent. It is strongly suggested to the 111th Congress to do similarly. By denying the people a means of expressing their opinion in a meaningful, lawfully-binding way on the matter of federal oversight of health care, an issue of enormous and unprecedented social impact – far greater than that which had been presented by “intoxicating liquors” – the 111th Congress would be denying citizens the ability to conduct self-government and would place into questioned legitimacy whether the powers upon which Congress is relying for this legislation (ICC, GWC) truly have “the consent of the governed” to be used in this manner.