In this week’s open threads — mostly this one, also a bit here — there’s been quite a bit of discussion of the Constitutionality of the individual mandate provision of the Affordable Care Act.
There are two senses in which we can talk about what’s “constitutional”: We can talk about how the Constitution actually has been interpreted by the Courts in present-day law, or we can talk about how we think the Constitution should be interpreted, regardless of present-day law or the history of precedent.
Ron was appealing to the first sense — how the Constitution is actually interpreted in law — when he wrote:
We’ll see. As we all know, absent a subsequent Amendment to the contrary the Constitution means what a majority of Supreme Court Justices says it means.
Put another way, Anthony Kennedy decides and the rest of us can go suck our thumbs.
Of course, that assumes the Supreme Court rules on the question at all, which it might not. The Supreme Court doesn’t have to step in to resolve conflicting rulings until the Appeals courts have ruled, and if all the Appeals court rulings agree with each other, the Court doesn’t have to step in at all. (Although they could if they wanted to.) ((My prediction is that if the ACA is found unconstitutional by the Supremes, it will be by a 5/4 vote; but if it’s found Constitutional by the Supremes, it will be by a vote of 7/2 or 8/1 (the one being Thomas). If conservatives on the Court lack the votes to win, then they have little incentive to vote against their own past rulings.))
But that’s boring old political reality. It’s a lot more fun to talk about how we should interpret the Constitution. The argument in comments has been over the scope of Article 1, Section 8 of the Constitution which gives Congress the ability to lay and collect taxes, to “provide for the common Defence and the general Welfare of the United States,” to “regulate Commerce… among the several States,” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
G&W replied:
From a pure legal standpoint, it seems fairly likely that congress could raise federal taxes and then provide health care. The government can provide as it feels necessary for the general welfare.[…]
Though there may not be much practical difference at all, from a pure legal standpoint there seems to be a pretty big difference between the above and a situation in which the government keeps taxes the same and requires you to buy health care.
What G&W is saying, if I’m following his argument correctly (it’s hard to say, since his argument was by assertion) is that the Constitution only authorizes for Congress to “provide” in the narrow sense. But that ignores the “necessary and proper” clause; Congress can “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
Criticizing Judge Vinson’s decision against the ACA, Akhil Reed Amar wrote:
Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress’ sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.
If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can’t it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer to this basic logical point.
Some conservatives would respond by saying that the Necessary and Proper clause doesn’t give Congress the ability to act in any way not expressly listed in Article 1, Section 8. But if that’s the case, then what does the Necessary and Proper clause mean at all? As conservative legal scholar Orin Kerr writes:
The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.
Bradon Berg went original intent on my ass, quoting James Madison. Ron goes there as well, arguing that “the Constitution’s whole purpose was to limit the powers of the Federal government.”
Both Brandon and Ron are wrong. If the Constitution’s whole purpose was to limit the power of the Federal government, then there would have been no reason to write the Constitution at all; the Articles of Confederation already provided for an extremely weak central government. The purpose of replacing the Articles with the Constitution was to remedy that flaw, not to repeat it.
The tenth amendment to the Constitution says:
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.
On August 18, 1789, when writing the tenth amendment, ((Which was the ninth amendment at the time.)) the founders explicitly argued over the very question Brandon, Ron and I are now discussing: Is Congress narrowly limited to the powers expressly described in the constitution, or not?
Mr. Tucker proposed to amend the proposition […] to add the word “expressly,” so as to read “the powers not expressly delegated by this Constitution.”
Mr. Madison objected to this amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia. […] Mr. Sherman coincided with Mr. Madison in opinion, observing that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed. […]
Mr. Tucker’s motion being negatived…
And then, on the 21st, they argued about it again:
…Mr. Gerry proposed to amend by inserting the word “expressly,” so as to read “the powers not expressly delegated by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” As he thought this an amendment of great importance, he requested the yeas and nays might be taken.
17 voted for “expressly,” and 32 voted to leave it out. This question — does Congress have implicit powers, or only those powers expressly described in the Constitution — was settled by the Founders themselves in 1789.
So what about the Commerce clause? The best guide we have to the Founder’s intentions is the instructions they gave to the committee that wrote the language of the Commerce clause.
That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the confederation; and moreover to legislate in all cases, to which the separate States are incompetent; or in which the harmony of the united States may be interrupted by the exercise of individual legislation.
That language — unanimously agreed to — indicates, quite simply, that Congress can deal with those matters that can’t be dealt with by “the separate States.” This language was then sent to the Founding equivalent of the markup committee. Andrew Kopppelman takes up the story:
This was then translated by the Committee of Detail into the present enumeration of powers in Article I, which was accepted as a functional equivalent by the Convention without much discussion. It includes the commerce and “necessary and proper” provisions.
Did the Committee of Detail botch its job, limiting Congressional power more than the Convention intended, and creating a regime in which Congress could not legislate in cases the separate states were incompetent to address? Did the Convention not notice the radical change? No. This language was accepted without objection for good reasons. […]
If health care markets involve such effects or problems, then the mandate presents a very easy case. This is not a recipe for unlimited power: grandstanding statutes that horn in on matters that are purely local, such as the federal ban on possession of handguns near schools that the Supreme Court struck down in 1995, exceeds the commerce power. But the national health care insurance market is not a purely local matter.
We might also turn to John Marshall, the first Chief Justice of the United States, and a Founding Father as well. In 1824, discussing the Commerce clause, Marshall wrote:
What is this power? It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms and do not affect the questions which arise in this case, or which have been discussed at the bar. […]
The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely in all representative governments.
Marshall wasn’t discussing health care, but the broad principles he described were clear, and apply today.
It’s clear that Ron and Brandon — and, probably, Robert — had they been in the room in 1789, would have voted to add “expressly” to the 10th Amendment. They would have disagreed with James Madison when he argued that “it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication.”
But the Founders considered this question, and decided not to limit Congress in that way. And the Necessary and Proper clause is in the Constitution, and — much to the chagrin of anti-government conservatives — actually has meaning.
As Brandon said in the previous thread, if people don’t like the Constitution, then they should amend it, not ignore it. If you want the Constitution to forbid Congress all powers not expressly given to it — then amend the Constitution and add the word “expressly.” If you want the Necessary and Proper clause to be null and void, then amend the Constitution and strike it out.
But what Ron and Brandon have been doing, in effect, is arguing that we should read the Constitution as if the Founders hadn’t specifically voted not to put the word “expressly” in; that we should read the Constitution as if the Necessary and Proper clause doesn’t mean anything at all. They’re in effect trying to amend the Constitution by ignoring what it actually says.
Contrary to what too many right-wingers claim, the Constitution is not an anti-government manifesto. The plain words of the Constitution give Congress the power to regulate all sorts of interstate commerce, and to use means that are necessary and proper to achieve that end. That includes, in this case, the power to create an individual mandate.
Well, unless Anthony Kennedy disagrees. In that case, never mind.
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Some additional links on the subject, most but not all of which I agree with:
- Mandates and the constitution: The commerce clause and health reform
- Former Reagan Solicitor General: I’m “Quite Sure” The Health Care Law Is Constitutional
- The Volokh Conspiracy: Lots and Lots of Posts About Health Care (They mostly disagree with me, but many of them are really smart nonetheless.)
- Stop Talking About Broccoli
- Doomed to Repeat History (regarding conservatives and the Tenth Amendment)
- Tribe on SCOTUS and the PPACA
- Health Care Reform And The Misinterpretation Of The Commerce Clause
- Commerce (law review article by Jack Balkin, pdf file, about 50 pages).
- Standing Up For Limits On The Commerce Clause (I recommend reading not only the main article — by one of the best conservative bloggers out there — but also the comments, particularly the responses by Noah Millman and by Patrick. There’s also a funny/embarrassing exchange regarding the paper the British Constitution is written on.)
Corso, what caught my eye was: The doctor was worried about my kidneys with what I’m on, and I get…