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

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Don’t Take
Things That Aren’t Yours.

~
A lesson from All I Really Need To Know I Learned In Kindergarten

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 u201Cfew
and definedu201D 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 u201Cthis Constitutionu201D
— 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 u201Cintoxicating liquors,u201D
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
u201Cthis [the written] Constitution,u201D
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
u201Cmightu201D affect interstate
commerce, or because any congressional action could be argued as
being within the even more elusive term u201Cgeneral
welfare,u201D 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
u201Cfew and definedu201D
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 u201Cintoxicating
liquorsu201D —
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 u201Cthe consent of the governedu201D
to be used in this manner.

November
23, 2009

Paul Galvin
[send him mail] conducts
his legal, tax and business advisory practice for businesses and
tax-exempt organizations in Springfield, Mass.

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