Victory defeated. Is health-care reform constitutional?


Is health-care reform constitutional?

From the Washington Post of March 21st, 2010:

With the House set to vote on health-care legislation, the congressional debate on the issue seems to be nearing its conclusion. But if the bill does become law, the battle over federal control of health care will inevitably shift to the courts. Virginia’s attorney general, Ken Cuccinelli II, has said he will file a legal challenge to the bill, arguing in a column this month that reform legislation “violate[s] the plain text of both the Ninth and Tenth Amendments.” On Friday, South Carolina Attorney General Henry McMaster and Florida Attorney General Bill McCollum announced that they will file a federal lawsuit if health-care reform legislation passes.” (Randy E. Barnett, Sunday, March 21, 2010
Washington Post – Read the article)

Bill4DogCatcher sez: If I were a Supreme Court member I would probably strike down the senate version of the health care bill should it become law as unconstitutional. The ‘why’ has nothing to do with health care reform — we need it desperately. But focusing on ‘we need’ health care reform does not make the bill acceptable constitutionally. That creates only an emotional response but not logic.

Part of the problem in creating a national health care plan is that the U.S. Constitution just makes it hard to do; power resides in the states for all authority not explicitly given to the federal government. I do believe that the preamable of the Constitution gives some leeway in its statement of “… promote the general Welfare …” but the SCOTUS will ultimately require that a specific section of the constitution be referenced to either defend or to attack the constitutionality of the health care reform bill should it become law.

Article 1 – The Legislative Branch
Section 8 – Powers of Congress

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

B4DC Comment: From here we get the Interstate Commerce Clause (ICC) regarding commerce among states. SCOTUS has repeatedly determined that Congress can regulate (health care, etc.) where there is interstate commercial activity. A challenge is that there is very little interstate transaction in the provision of health care in reality; insurance companies are almost always set up as subsidiaries at the state level — which is the real reason why we can’t buy health care across state lines.

Article 1 – The Legislative Branch
Section 9 – Limits on Congress

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

B4DC Comment: You can’t exempt a portion of the population like union members, or an entire state for 10 years, from paying their fair share.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

B4DC Comment: Every school child learns about this. Commerce, whether shoes – agriculture – health care, is regulated internal to a state. Only those industries that conduct interstate commerce can be regulated under the Interstate Commerce Clause – almost all health care is carefully conducted within states. If you have a national regulation it must be uniformly applied.

Amendment 9 – Construction of Constitution

The enumeration  in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

B4DC Comment: This is a food fight clause.

One interpretation of what this amendment means is that “The 9th Amendment is simply a statement that other rights aside from those listed may exist, and just because they are not listed doesn’t mean they can be violated.” A practical interpretation as regards the health care form bill: will some Americans lose their freedom to make decisions? Freedoms that they had prior? Yes.

Amendment 10 – Powers of the States and People

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.

B4DC Comment: Very simple words to understand. Where does it give Congress the ability to create a service (health care) and then penalize people if they do not participate?

Good intentions are not enough. Overwhelming support for something to be done is not enough. Focus on trying to create a single solution at the national level may well be self-defeating regardless of whether Congress were even to vote for health care reform 535:0.

Bill4DogCatcher sez: As much as I believe health care reform is needed, and needed now, the senate version of health care reform is both unconstitutional and overreaching. If the senate bill should be passed by the House then it will be more of chimeral victory that will be defeated in the SCOTUS due to its many flawed provisions, rather than the total sum value of its intent.

The real shame in all of this is that real health care reform will fall by the wayside for perhaps a generation. Those professional politicians that accepted hundreds of millions of dollars throughout the 2000s to defeat health care reform will continue to collect beaucoup $$ and … we shall just have to see.



Bill Golden is an independent observer of economics, politics and human resource management issues. Politically conservative but considers himself to be both Coffee & Tea. Solutions come from dealing with reality, not emotional responses.

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2 Comments

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2 responses to “Victory defeated. Is health-care reform constitutional?

  1. Some people believe that since the health care industry is 20% of our economy, the Interstate Commerce clause (Article I) applies. It’s an interesting argument.

    While the 10th amendment is often invoked by the states, the Supremacy Clause (…the laws of the United States…shall be the supreme law of the land)… in Article VI is often cited as the reason that such initiatives by the states to in effect invalidate Federal law are unconstitutional (and, IMHO, that’s correct). Simply put, the State cannot pass a low that attempts to invalidate a Federal law. The “catch 22” of the Supremacy Clause is that the Federal laws in question must be Constitutional… and as you state we can expect Constitutional challenges to come from all directions.

  2. Pingback: Health Care Reform Act Stumbles by Virginia Constitutional Challenge? « Bill4DogCatcher.com

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