Is a federal government takeover of the health care system constitutional?
Some argue that under the Constitution, Congress is not authorized to regulate or subsidize health care.
Michael Boldin, founder of The Tenth Amendment Center, told WND that if citizens want to understand whether health care is constitutional, they must first understand the function of the Constitution.
“The best way to look at it is that it doesn’t apply to you,” he said. “It doesn’t apply to me. It doesn’t apply to any person at all. It applies to the government, and it sets the boundaries of what government is supposed to do.”
In debating whether health care is constitutional, Boldin said citizens must look to the founding document to 1) determine whether the power is specifically listed there, or 2) if there isn’t a specific power listed, look to the “Necessary and Proper Clause,” or Article I, Section 8, clause 18.
Article I, Section 8, specifically lists the following powers granted to Congress:
- 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 Offenses 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
Signing of the U.S. Constitution, Sept. 17, 1787 (painting by Howard Chandler Christy, 1937)
‘Necessary and proper’
Boldin said the last power, dubbed the “Necessary and Proper Clause,” does not grant the federal government unlimited authority, but gives it some leeway for certain things – only as long as those actions apply directly to the Constitution’s specifically enumerated powers.
He said a good example of a necessary and proper power in action is the authority to establish post offices listed in Clause 7.
“Article I Section 8 gives the federal government the power to build post offices,” he said. “But it doesn’t specifically state that it can go out and buy land to build post offices or hire labor to build post offices. Those actions would be necessary and proper and, more importantly, lesser than the main power. So, if they were only able to create a post office, but they couldn’t buy the land or the tools or the labor to do it, they’d never get the post office built.”
Boldin continued, “When you think of what is necessary and proper to
carry out a specifically listed or enumerated power, it has to meet two
criteria: It has to be directly applicable, and it also has to be
lesser than the enumerated power.”
Some critics point to the “general welfare” stipulation in Clause 1 as a key provision granting the federal government the authority to regulate health care. However, in The Federalist No. 41, James Madison, the “Father of the Constitution,” argued that “general welfare” in Clause 1 does not give the federal government unlimited power, rendering each of the following clauses redundant.
Madison asked rhetorically, “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?
He continued, “Nothing is more natural nor more common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”
Madison sought to address concerns of critics who warned that the “general welfare” clause opened the door to unlimited abuse.
“The Federalist Papers were public arguments to try to convince people to ratify the Constitution,” Boldin said. “They weren’t just writing about the general welfare clause for the hell of it. There was a real concern by people who were opposed to the Constitution that the general welfare clause would give this unlimited power to the federal government to do whatever it claimed would ‘support the general welfare.’”
Referencing the “general welfare” concerns, Madison even accused critics of “labour[ing] for objections” by “stooping to such a misconstruction.”
“It wasn’t just the opponents of the Constitution saying there had to be limits to this,” Boldin noted. “It was the proponents of the Constitution who were saying, in order for it to be general welfare, it must apply to one of the enumerated powers.”
No federal authority
Because the power to regulate each citizen’s medical care is not included among enumerated powers, he said, the federal government does not have the authority to impose a single-payer system.
“You have to look to the Constitution and ask, ‘Is health care listed?’” Boldin said. “No. It’s not.”
“Is health care directly necessary and proper to carrying out any of the listed powers such as creating post offices and national defense?”
He said critics might argue that to have a good national defense, the United States must make sure that everyone is healthy.
“But that would not fall under any definition of what’s considered necessary and proper,” he said.
Furthermore, he cited the 10th Amendment, which states:
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.
He said that while the government has overstepped its bounds in many cases and used the federal government in violation of the 10th Amendment, that provision must not be ignored.
“No one has ever repealed the 10th Amendment,” he said. “They do it by judicial fiat, but it still exists.”
‘Equal Protection Clause’ of 14th Amendment
The 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Some proponents of federal health care have argued that every citizen must be treated equally, and the current health care system is an example of gross inequality that runs contrary to principles of the 14th Amendment. They say wealthy people are able to afford and obtain medical treatment while the less fortunate are left to suffer when they are unable to pay for an operation or treatment.
“That argument would lead to a crazy slope where you could say everyone should have the exact same car,” Boldin said. “Then we should have the same guarantee of transportation to get to work, the same guarantee of food and shelter. Should we all have equal homes? I mean, if someone wants to make that argument, they have to make some serious changes to the Constitution to authorize it.”
He said regardless of their political affiliation or position on health care, citizens must ask themselves whether they truly want a government that has no limits.
“No matter what side you are on, you don’t want a government that can do whatever it wants whenever it wants because it becomes dangerous,” Boldin said. “This is what the Founding Fathers and the entire founding generation had to fight against – a king who could set his own rules and make them up as he goes. Rules may not be a wonderful thing, but when you allow government to do whatever it wants, you are guaranteeing tyranny.”
Amending the Constitution
Some critics say the Constitution was meant to be a “living document” that would adapt to changing times, and since health care is a modern-day issue the Founding Fathers could not have foreseen, they argue, the federal government must step in and provide a single-payer system.
With regard to the “living document” argument, Boldin said that is what the amendment process is for. However, he said, lawmakers won’t propose a health care amendment because they know it will not pass.
“They just don’t propose it because, if they did, that would make it a much more serious discussion,” he said. “The discussion wouldn’t just be about helping the poor people – which is obviously a good motive for the people who really believe that.”
He continued, “Instead, the discussion would be about the proper role of the government. Should it be involved in this at all?”
States move to nullify federal health care
Activists and state legislators are now focusing their efforts on state governments as a way to resist federal health care “reform” and stop federal usurpation of state rights, according to the Tenth Amendment Center. Lawmakers in as many as 10 states are considering or seeking to propose bills and resolutions to nullify federal health care in their states.
The Tenth Amendment Center explains nullification:
When a state “nullifies” a federal law, it is proclaiming that the law in question is void and inoperative, or “non-effective,” within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
Florida state Sen. Carey Baker
“Nullification goes all the way back to fighting for free speech in 1798 when the federal government passed the Alien and Sedition Acts,” Boldin said. “Thomas Jefferson and James Madison wrote the Kentucky and Virginia Resolutions saying, you can’t do this; we’re not going to abide by this in our states. Jefferson specifically said the people in our country are not united on the principle of unlimited submission to their general government. The same holds true today. We’re not subjects.”
Recently, the issue of nullification re-emerged when nearly two dozen states mounted a resistance to the 2005 Real ID Act. Maine and Utah led the way by passing resolutions to refuse incorporation of federal security features into state driver’s licenses and identification cards. After meeting fierce state resistance to its plans, the federal government delayed implementation twice and later announced it would “repeal and replace” the controversial law.
“The federal government wasn’t able to do anything,” Boldin said. “It wasn’t able to threaten – nothing. It had to back off, and now it’s getting rid of it.”
Florida state Rep. Scott Plakon
Now states have turned their attention toward nullification of federal health care “reform” should it pass Congress this year.
On July 27, Florida State Sen. Carey Baker and State Rep. Scott Plakon filed H.J.R. 37, a proposed state constitutional amendment that would prevent Florida citizens from being affected by federal health “reform.”
The proposed amendment prohibits “laws or rules from compelling any person, employer, or health care provider to participate in any health care system” and permits “a health care provider to accept direct payment from a person or employer for lawful health care services.”
It also exempts “persons, employers, and health care providers from penalties and fines for paying or accepting direct payment for lawful health care services” and permits the “purchase or sale of health insurance in private health care systems. …”
If approved by the state legislature, Florida residents may vote on the amendment in 2010.
Likewise, the state of Arizona has joined the growing resistance to federal health “reform.”
Arizona state Rep Nancy Barto
On June 22, the Arizona state Senate voted 18-11 to concur with the House and approve H.C.R. 2014, known as the Health Care Freedom Act. Arizona residents will vote on the amendment sponsored by Arizona Rep. Nancy Barto in 2010.
This week, Louisiana state Rep. Kirk Talbot announced he will propose a constitutional amendment to shield state residents from federal health “reform.”
Louisiana’s health chief, Alan Levine, told The Advocate that the legal debate should get interesting.
“The 10th amendment to the Constitution ensures states have the right to conduct their affairs except for those things specifically ascribed to the federal government,” he said. “Health care is not one of those things the federal government has the ‘right’ to impose on states.”
Louisiana state Rep. Kirk Talbot
Boldin confirmed that The Tenth Amendment Center has been in contact with sources in seven other states that have indicated their legislatures will see similar health care nullifications as early as 2010.
In a July interview with the Mark Davis Show, Texas Gov. Rick Perry indicated that his state may join the showdown with the White House over federal health care.
“I think you’ll hear states and governors standing up and saying ‘no’ to this type of encroachment on the states with their health care,” Perry said. “My hope is that we never have to have that stand-up. But I’m certainly willing and ready for the fight if this administration continues to try to force their very expansive government philosophy down our collective throats.”
Boldin said he expects the movement to grow as people realize they can take their concerns to their own state governments
“Once the ball gets rolling, I think people will recognize that you can bang your head on the federal doorstep year in and year out and fail because they don’t listen to us in D.C.,” he said.
“This is what Jefferson, Madison and most of the founders recommended – this idea that there’s a balance of government. When the federal government gets out of control, you have to look to your state governments to protect you against it.”
He referenced the recent surge in protests at health care town hall meetings across the nation.
“If these were all focused on state governments, we would probably see 10 or 20 nullification bills in states already,” he said. “And the health care program would be dead in the water.”
Ultimately, Boldin said, it’s not up to the federal government to provide health care for the nation.
“This is an issue that the federal government shouldn’t be touching at all.”