Friday, September 4, 2009

Federal Healthcare Reform Poses Serious Constitutional Questions

When asked during his townhall meeting in Victor whether or not healthcare was a right, Rep. Massa paused, then, without elaboration, his chin firmly positioned against his chest, he meekly responded "It's a right".

What he didn't explain was whether he felt it was simply a "moral right" or a "constitutional right". I assumed he was ducking the distinction to preclude being challenged by a rather querulous audience.

Nonetheless, since exploring this question nicely dovetails with my earlier post entitled "Mangled General Welfare Clause Interpretation Imperils Constitutional Governance", for my own enlightenment I opted to briefly examine some of the constitutionality issues surrounding national healthcare. You'll note that I have more questions than answers, since I feel the latter are best left to those more thoroughly schooled in the area of constitutional development and law. But, be that as it may, nothing should prevent any of us voicing our educated opinions.

That said, while the healthcare reform debate has raged at the policy level, little, if any, meaningful or readily accessible discussion has been seen by me regarding the constitutionality of the sort of federal healthcare reform which is currently being promoted by universal healthcare advocates both in and out of government. And in this Progressive-dominated era, the burning question is whether or not Congress will substantively broach the subject of constitutionality at all when shaping or enacting healthcare or any other Progressive legislation. Only with rare exceptions, I fear, am I confident that such an important discussion will, at some point, take place. But, always the optimist, I will hold out hope.

For instance, does congressional authority over interstate commerce properly extend to government's right to require all individuals to purchase coverage or pay a percentage of their income as a fine? Proponents of the public option would likely expansively argue that any individual action which can in some way influence interstate commerce can be largely regulated. However, such a superfluous interpretation of the commerce clause was decidedly repudiated by the Supreme Court in US vs Lopez (1998) and US vs Morrison (2000). Also, and very importantly, in Gonzales vs Raich (2005) the court emphasized that interstate regulation may be justified only on "quintessentially economic" grounds. For the casual inquirer then, mandating individual conduct certainly falls far short of "quintessentially economic".

Nonetheless, it occurs to me that if government cannot compel you to accept healthcare, how can it compel you to carry healthcare insurance? Even among certain religious groups, receiving healthcare is a violation of their religious beliefs. Can these same persons who refuse treatment on religious grounds be coerced to purchase health insurance? And what of those who abhor abortion on religious or moral grounds? Can they be forced to purchase insurance which either directly or indirectly finances such a practice?

Thus, probably the overarching constitutional concern is the "individual mandate" which, either in a coop or public option construction, would require all individuals to purchase insurance. To wit, the Senate version of the bill would penalize those who failed to comply with this mandate. The House versions would simply mandate universal compliance. The choice, then, for the individual would be to contribute to either a healthcare cartel heavily influenced by political overseers in DC, or to the federal public option plan itself. Clearly, no meaningful individual freedom of choice here at all.

Then, of course, there's the broader question of federal authority in such matters (outside the confines of the District of Columbia and federal territories) by the "general welfare clause".
Said James Madison on the floor of the House in 1794, "I cannot undertake to lay my finger on that article in the Constitution which grants a right to Congress expending, on objects of benevolence, the money of their constituents." He went on to say that "the government of the United States is a definite government, confined to specific objects. It is not like the state governments, whose powers are more general. Charity is not part of the legislative duty of the government." But, good grief, what does Madison know? He's only the "father of the Constitution".

Thus, as a policy matter, is not healthcare better left for shaping and enactment at the state level? As wisely envisioned by the framers, wouldn't the encouragement of state-level healthcare experimentation shield the nation from possible failed federal experimentation which would needlessly, adversely and limitlessly affect every person in the country? Conversely, why should Massachusetts and Oregon healthcare fiascos be imposed upon the rest of the country? So, again, why not consign heathcare reform to the laboratory of state experimentation. What works will be quickly replicated. What is flawed will die a well-deserved death without tainting the remainder of the union.

As a practical matter, however, most states have long ago yielded their 10th Amendment authority to a federal government intent upon bribing states with federal largesse. So, while sober constitutional arguments against the imposition of a federal healthcare program may be intellectually overwhelming, from a practical standpoint such carefully crafted argumentation may be for naught.

Very interestingly, HR 3200 does not cite the commerce clause or any other enumerated power to warrant its authority. In fact, the only reference to the Constitution in HR 3200 is a severability clause which is intended to spare the remainder of the bill's provisions if a part is declared unconstitutional. Maybe the drafters really do understand the constitutional ramifications afterall and are trying to cut their possible losses.

Though I'm not taking the time to exhaustively explore each of them, the Independence Institute succinctly and clearly cites these specific constitutional problems with HR 3200:

1. Outside DC and the federal territories, the feds do not have the constitutional authority to control healthcare.
2. As can be seen in current healthcare proposals, Congress cannot delegate any of its authority to the Executive Branch.
3. The federal intrusion into the doctor-patient relationship violates the "substantive due process" principle. (Note: simply put, "substantive due process" holds that the 5th and 14th Amendments' "due process clauses" must protect not only procedural rights but also "substantive" rights which are thsoe more fundamental rights of freedom to do certain things the government may not desrie the individual to do. It holds that due process cannot be completely just if it is applied to unjustly deprive a person of his basic human liberties.)
4. Citing the 10th Amendment, the Supreme Court holds that Congress may not "commandeer" state decision-making in the service of federal goals.
5. While Congress may condition grants to states, if those conditions are "coercive" then the mandates contained in HR 32000 violate that prohibition against coercion.

Even liberal Justice Souter has cautioned that imposing national healthcare has serious "constitutional dimensions".

For me, it seems embarrassingly simple: there is no clear-cut Constitutional right to government healthcare, and most certainly not for mandated individual participation. If a public option healthcare reform is rammed through with individual mandates and penalities as the essential centerpiece, the GOP congressional resurgence in 2010 will surely nullify or effectively stymie implementation--but only if "we the people" and solidly conscientious legislators like Rep. Shadegg, Senator DeMint, Rep. Pence and Rep. Ryan, among other notable patriots, keep the pressure on.

Finally, does not this latest example of seemingly unbridled federal overreaching necessitate the enactment of the Enumerated Powers Act (HR 450) which is currently buried in the Democratic-dominated House Subcommittee on the Constitution, Civil Rights & Civil Liberties. Gee, doesn't all that zealous congressional patriotism and rigid allegiance to our Constitutional principles warm the cockles of your heart?

("The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people." D. Rivkin & L. Casey, Baker Hostetler LLP)

(I'm not sure much meaningful individual freedom will remain after the government claims the right to mandate how and when products must be purchased and from whom." Jason Arvak, Poligazette)

("One of the traditional methods of imposing statism or socialism on people has been by way of medicine. It's very easy to disguise a medical program as a humanitarian project. Most people are a little reluctant to oppose anything that suggests medical care for people who possibly can't afford it." Ronald Reagan, 1961)