March 27 2012
Symptoms of Bad Constitutional Medicine
Heather R. Higgins and Gayle Trotter
As ObamaCare heads towards its day in the Supreme Court, how can we make sense of competing claims about whether Congress has exceeded its authority under the Commerce Clause?
A bit of history might be helpful. The principle reason the Constitution bestowed on Congress the power to "regulate" interstate commerce was the need to dismantle the economic barricades of duties, tariffs, and taxes erected by the individual States under the precursor to our Constitution, the Articles of Confederation.
As the Framers met in Philadelphia, the states were hunkered down against one another, piling more taxes on top of ever more retaliatory tariffs. The fledgling American economy was floundering and foreign commerce had all but collapsed.
Something had to give. The remedy was the Commerce Clause, which was widely popular at the Constitutional Convention and also afterwards during the ratification debates: James Madison wrote that while the commerce power was admittedly "an addition" to federal authority, and such additions were usually met with suspicion, this was one "which few oppose and from which no apprehensions are entertained."
Besides, Madison continued, the Constitution -- Commerce Clause and all -- reserved to the states power over "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
Not to worry, in other words. The trade barriers would come down, while the federal government would be granted only limited powers -- in order to secure the people's freedom from the larger potential problem of undue federal centralization.
And the great debates over the big questions of life would continue, as before, in the states. That's where they would still be decided, close to the people. What could go wrong? Well, stay tuned.
A couple centuries later, this same Commerce Clause is being used to justify a federal takeover of essentially the entire health care sector. ObamaCare may or may not be the best model of health care. It's certainly not the only imaginable one.
But, if it is upheld by the Supreme Court, it will very shortly be the only legal one. This will crush competition and preempt a great deal of state experimentation.
For example, the States of Utah and Oregon have adopted very different models to further access to health care. These models diverge significantly, in theory and practice.
Utah has adopted a strict, market-based approach, emphasizing access to information and consumer choice.
Oregon directly finances health care services for qualifying low-income adults and seeks to control costs by rigorously prioritizing and selectively funding particular medical services.
Such experimentation is good and healthy. Yet ObamaCare largely preempts both and every other alternative -- and so closes the laboratory of state innovation.
It's not just a fiscal takeover either. Structurally, there is no "live and let live" here, but serious preclusion of the personal choices that define us and go to the heart of liberty; ObamaCare has a foundational presumption that decisions don't really belong with patients and their doctors, but with remote bureaucrats' one-size-fits-all template.
For along with the dollars-and-cents issues, ObamaCare nationalizes a number of big moral and philosophical questions, some of the same ones Madison was sure would stay at the states' level. The most obvious of these concern our concepts of justice, charity, liberty, and even more profoundly, questions of when life begins and how it should end.
ObamaCare goes out of its way to nationalize and impose a single federal answer to a number of highly charged questions: Are abortion-inducing pills, sterilization, and contraception so uniquely essential that they should be available to all, free of charge?
Should abortion and the recent HHS mandate items be subsidized even by those who, in conscience, find them abhorrent? Even those for whom these are not moral concerns recognize the importance to our rights of conscience exemptions.
Should patients be denied care because doctors will be penalized for trying innovative treatments for those who don't respond to standard protocols, or for assisting those who need more than the average number of tests?
To what extent should patients and their doctors have dictated to them the treatment options at the end of their lives? These are big questions that should be open for debate. They should not be summarily silenced by a centralized federal bureaucracy.
Whatever else may be said about ObamaCare, one thing is clear: somewhere James Madison is tearing his hair out.
To be sure, much has happened since the founding generation. Interstate commerce has expanded light years beyond what the Framers could ever have imagined. And so "regulating" it isn't always as simple as they would have assumed.
Nevertheless, the Commerce Clause's origins still have plenty to teach us: Competition is a good thing, and centralization a bad thing, for the economy and for individual freedom, because the free exchange of ideas and goods is how we increase our cultural intelligence and personal well-being.
And life's great questions are best answered at the lowest level possible -- the level closest to where people actually live their lives.
For the federal government to centralize a vast area of our economy and shut down competition, at the same time it nationalizes the answers to huge moral and social questions, is symptomatic of a constitutional pathology. ObamaCare points clearly to a Congress that has breached the limits of its power under the Commerce Clause.