The Constitution Matters – Part One

David Rivkin

When Lee Casey and I titled our most recent Washington Post article Illegal
Health Reform, there was little question in our minds that dissension and possibly
furor would ensue. The debate concerning the merits of such reform has already
frustrated heavily invested proponents, and now comes the question of legality.
But aside from the expected personal attacks and typical rants, we were
disappointed by the fact that a large proportion of disagreements with our
position seemed to stem from reflex reactions based on “sound bites” permeating
the media. I must admit I was looking forward to a robust debate derived from
careful inspection of what the Constitution actually says and from examination of
the relevant Supreme Court decisions. Forgive me for being professorial, but I
would like to address a number of comments on the article, so that we can foster a
productive debate and reduce the shouting matches. Forgive me further for being
an amateur psychologist: I believe I understand the furor of the health reform
protestors and can shed some light on their outrage.

Individual mandate issue

Our obvious concern with the proposed health care plan, specifically the
“individual mandate,” is that the Constitution fundamentally limits federal
powers. This was done for some very important reasons – in an effort to protect
individual liberty and prevent the rise of an excessively strong governmental
authority, the Framers deliberately chose to disperse governmental authority, both
vertically (with the States retaining formidable authority, wielding what is known
as the general “police powers”, and the powers of the federal government limited
and the boundaries clearly defined) and horizontally with the federal government’s
powers divided among three separate and distinct branches (Congress, the Executive
Branch and the judiciary). This is the show-stopper, then: the federal
government’s exercising of the police powers that ought to be properly reserved
for states would effect an enormous constitutional deviation; it would
fundamentally alter the entire constitutional scheme. Such a step, even if the
majority of Americans today desired such a change, ought to invoke the amendment
process outlined in the Constitution itself.
A good number of comments on Illegal Health Reform expressed strong opinions
that, since health care has an economic consequence—one of the few areas in which
Congress can exert authority—it can legislate at will, i.e., exceed the limits
formerly placed on its authority. As we pointed out in the article:
“in two key cases. . . the Supreme Court specifically rejected the proposition
that the commerce clause allowed Congress to regulate noneconomic activities
merely because, through a chain of causal effects, they might have an economic
impact. These decisions reflect judicial recognition that the commerce clause is
not infinitely elastic and that, by enumerating its powers, the framers [of the
Constitution] denied Congress the type of general police power that is freely
exercised by the states.”

Our sense is that the proposed House legislation sounded an alarm in the
subconscious of citizens who have internalized the individual freedoms protected
by the Constitution and it led to the outcries in today’s town hall meetings.
Instead of silencing the protestors, we need to articulate and address the
disconnect that has spurred their mobilization.

Does the end justify the means?

Another large segment of comments, on the surface, could be categorized as
“the ends justifies the means.” But several readers used the Preamble of the
Constitution to assert that Congress can do what it will “in the public interest”
and to urge lawmakers to take action based on ethical, moral, or compassionate
grounds. Unfortunately, this argument contributes directly to the
misinterpretation of the Constitution and accelerates the already advancing tide
of Constitutional drift.
The Preamble does not give powers; that is why it is called a Preamble. To
be sure, one can consult the Preamble in construing the meaning of the specific
grants of authority vested in the federal government. For example, some
constitutional scholars have argued that many congressional spending-related
decisions, particularly the ones that earmark federal largess to a specific
personal entity, are inconsistent with the Preamble’s “public interest” language.
However, nothing in the Preamble to the Constitution, or for that matter, in a
Preamble to any statute, or even a private contract/agreement, can alter the plain
meaning of the specific provisions that follow. For asserting this, one can be
denounced as mean-spirited, selfish, or tagged with any number of evil-mongering
adjectives. But the facts, stubborn as they are, are still facts.

Has Congress already intruded?

Several arguments, raised by the commenters, stemmed from flawed analogies to
social security or auto insurance. The “social security” argument, that this is
an example of an individual mandate and therefore Congress has already intruded
into individual mandate territory, is not valid. Social security is a tax levied
on the employed, and is partially funded by the employer. Congress can
constitutionally impose all sorts of taxes, and Social Security tax is one of
them. It is worth noting here that, by the way, there is no individual mandate to
use social security; all that the government is requiring citizens to do is to pay
social security tax on their wages.
The “auto insurance” arguments have cited the states’ unwavering ability to
require the purchase of collision insurance—i.e., to mitigate harm to another, not
to protect oneself. This has an appealing, but faulty analogous reasoning: “If the
state can enforce the purchase of auto insurance, why can’t the federal government
enforce the purchase of health insurance?” Key facts about our system of
government, as enumerated in the Constitution and taught throughout the public
school system, are overlooked in this argument. These facts, once revealed,
quickly eliminate it.
Many of us get so wrapped up in paying for auto insurance and keeping our driver’s
license up to date that we seldom consider whose authority mandated these apparent
restrictions on individual liberty. As explained in our op-ed piece and
reiterated above, the States have general police powers which can be used to
support mandates that exceed those that can be put in place by the federal
government. It is also worth noting that a lot of readers apparently
misunderstand how even state-level automobile insurance mandates really work. In
this regard, a person who fails to purchase insurance and does not pay a fine for
it, cannot register his car.
While this is unpleasant, nobody’s constitutionally-protected liberty is
infringed. This is because there is no constitutional right to register cars or
obtain any other license or regulatory approval from the government. To be sure,
the government cannot be arbitrary or capricious in how it goes about issuing such
licenses or approvals; it also cannot discriminate among citizens in this process
(for example, it cannot treat men and women applying for car registrations
differently.) But, it can attach any conditions it believes to be in the public
interest, like the automobile insurance, to the license.

Should we be so quick to give up rights?

I would invite the readers to consider the consequences of allowing the federal
government to impose an insurance purchase mandate on individuals. If the federal
government can do this, nothing prevents it from imposing an array of other
mandates, all seemingly connected to the goal of improving public welfare and
having a stronger economy. These would range from requiring people to buy a
certain quantity of healthy food items, e.g., vegetables or fruits, to the
purchase of sports club memberships. I very much doubt that, constitutional
issues aside, even the most dedicated proponents of the health care reform would
want to live in a country where the government can control peoples’ lives to such
an extent.
To ensure the continued liberty of the American people, any law created by the
federal government must be evaluated for its adherence to the Constitution. This
is why the Constitution was created. This is why it matters, if you will. Put
plainly, if any law, including the proposed system for national health care, does
not fall within the boundaries of the Constitution, it cannot be enacted.