by Rob Natelson

During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound.  This is certainly so for those who believe the Constitution means what our Founders understood it to mean.  But it is even true for those interested only in modern Supreme Court jurisprudence.

Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:

Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document.  (The exact number depends on how you count.)  None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power.  But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now.  And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.

The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.”

But health care bills such as the Obama-favored HB 3200 do not even offer a pretext.  The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional.  HB 3200 contains no reference to the Commerce Power or to any other enumerated power.

Excessive Delegation. The Constitution “vests” legislative authority  in Congress.  Congress is not permitted to delegate that authority to the executive branch.  This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits.

Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.

Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence.  The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy.

The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship.  But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200.  “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.

Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution.  However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.

It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.”  Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21.

But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.

A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.  National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties.

Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.”  The proper way to make such a change is not through an ordinary congressional bill.  The proper way is by constitutional amendment.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

Concordia res parvae crescunt
Small things grow great by concord...

Tenth Amendment Center




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