There's One Simple Reason Why Obamacare is Unconstitutional and Here's Why - Part II
This essay was written by Andrew Herzog, Dominic Dougherty, and Nicholas Caluda for the University of Dallas 'Legal Environment' class. It was compiled back in December, 2011. Part II of III
Clearly there are some negative opinions about Obamacare, and it is with this background information in mind that the constitutionality of it should be examined. Challenged by more than half the states, the disputed individual mandate requires that almost every American purchase health insurance by a certain date or else face penalties. Deciding whether something is constitutional is rarely a simple process. A law must be struck down not only if it is expressly forbidden by the Constitution, but also if it exceeds the constitutional powers of the legislative branch. Either way requires some degree of interpretation, but the latter is the main ground for the opposition of the states, and this is naturally more complex to determine. The traditional method for interpreting a law is to examine it based on the original intent of the lawmaker. Of course, the Founding Fathers who framed the Constitution all died long ago, which was rather inconvenient of them. Fortunately, however, we have not lost all possibility of discovering how they intended their prized document to be interpreted, for their opinions have survived in a number of other sources.
The Federalist Papers
By far the best of these are the Federalist Papers , written in 1787-1788 to explain and defend the proposed Constitution to the people of New York during the time when it was undergoing the process of ratification. Alexander Hamilton and James Madison, who penned the vast majority of the papers under the name of Publius , are especially authoritative because they were prominent members of the Constitutional Convention. One of the greatest tasks they faced was to dispel the fears of the people and state legislatures that the new federal government would centralize power nationally and interfere with the vital principle of local self-government. Most states were unwilling to join the Union unless they were sure that the basic day-to-day control of matters dealing with individuals would be left up to them. Thus the Framers were careful not to give Congress powers beyond what would be needed to run the country effectively, and they were successful in allaying concerns by making this clear.
What would they have said about ObamaCare? To begin with, they would have been appalled by the scope of the bill and the expenses it will generate, largely due to the expansion of Medicaid. Americans had just recently finished fighting a war which, as stated in the Declaration of Independence, was largely caused by a government’s despotic actions of “imposing Taxes on us without our Consent,” “altering fundamentally the Forms of our Governments,” and “declaring themselves invested with power to legislate for us in all cases whatsoever.” In debt from that war, though not nearly as badly as the situation today, the country was worried about excessive federal spending. Hamilton, in Federalist No. 34, spoke of the “frugality and economy which … become the modest simplicity of republican government.” Further, in Federalist No. 84, he envisioned the peace-time costs of the government not to go much beyond the cost of paying the wages of the surprisingly limited number of federal officials.
If they were to get wind of the individual mandate, the Founders would be turning in their graves. The idea that Congress might require citizens throughout the country to purchase an expensive private insurance product against their will would have been treated as an outrageous usurpation, if any of them could be convinced that the proposal was serious. Hamilton did not think that the national legislature had the ability or even the desire to regulate the private lives of ordinary individuals; in Federalist No. 17, he says, “The administration of private justice between citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares or a general jurisdiction.” Explaining that direct dealings with people is the business of the states, he mentions that “The operations of the national government [fall] less immediately under the observation of the mass of the citizens.”
Madison shares these sentiments. Speaking of the administrators of state governments in Federalist No. 46, he asserts, “By the superintending care of these, all the more domestic and personal interests of the people will be regulated and provided for”; on encroachments, he holds that “State governments could have little to apprehend, because it is only within a certain sphere that the federal power can … be advantageously administered.” The whole Constitution is based on the assumption that the national government has no powers beyond those granted therein. As Madison wrote in Federalist, No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain to the State governments are numerous and indefinite” and these, he continues, “will extend to 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.”
Actually, both of these men suggested there is more danger that the states would act outside of their proper sphere to usurp and hinder federal powers. But just to set people’s minds at ease, the federalists made it clear by passing the Tenth Amendment that “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.” Thus if there is no provision that gives Congress authority to pass an individual mandate law, then it was unconstitutional for them to do so. Section 8 of Article I lists the powers delegated to Congress. Not even an enthusiastic supporter of ObamaCare would claim that such a provision is expressly stated. One might be tempted to that the catch-all Necessary and Proper Clause at the end is sufficient, but this only gives the authority to make laws pertaining to the powers already given. Besides, the Framers could not have meant it to refer to health insurance, which did not exist in their time.
The Commerce Clause
That leaves the Commerce Clause. Congress is vested with the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” What did the Founders intend by this? Madison explains in Federalist No. 42 that the regulation of foreign commerce, which primarily meant setting tax rates on imports and exports, is the most significant part of the clause, and that this power was simply extended to include trade between states, for their own benefit. He says that "A very material object of this power was the relief of the States which import and export through other States from the improper contributions levied on them by the latter." In Federalist No. 45 he notes that the regulation of commerce is a power "which few oppose and from which no apprehensions are entertained.” Neither he nor Hamilton devoted a great deal of attention to the clause, and there is no mention that it could justify anything like the individual mandate—as such it should be declared unconstitutional.
Continues with Part III...