Friday, October 23, 2009

Pelosi Was Right to Dismiss Question Regarding Constitutionality of Healthcare Reform

Updated Thread: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

Today, a "reporter" from CNSNews.Com, a conservative blog, asked Nancy Pelosi to point out language in the Constitution that specifically authorizes Congress to mandate that individuals purchase health insurance. Pelosi dismissed the question by responding, "Are you serious?" Pelosi's response was absolutely warranted.

Conservatives have tried unsuccessfully to argue that the Constitution does not permit various aspects of Democratic healthcare reform. Liberal and conservative Constitutional Law scholars have rejected these arguments, but people continue to assert them.

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.
In addition to the above observations, a method of constitutional interpretation that demands specific and unambiguous textual support would mean that the following federal rights or powers could not exist: the right to pray during school or to be free of racial quotas in college admissions; and the power to ban child pornography on the Internet; "drill drill drill" for oil in Alaska; force air passengers to submit to safety screening; and to criminalize acts of terrorism. The Constitution does not specifically mention any of these things.

I am happy to debate the meaning of the Constitution -- but, please: let's retire ridiculous and unserious arguments.

UPDATE: Hot Air chimes in, and I respond: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.


Kathy said...

"Ridiculous and unserious arguments" and the contemporary conservative/Republican movement seem to be indistinguishable.

Velcro said...

You're kidding, right? I mean, seriously, you cannot see the qualitative difference between creation of the Air Force and creating a REQUIREMENT FORCING ALL Americans to buy health insurance? REALLY?????

And don't fall back on BO's comparison of states requiring auto insurance because that's qualitatively different since driving is a PRIVILEGE.

Darren Lenard Hutchinson said...

Velcro: Read again.I cannot see the qualitative difference between requiring explicit language in one context but not the other. I have argued on this issue several places (see citation). I do not need to "fall back" on anyone's arguments. I have taught Constitutional Law for over a decade.

jmoss73 said...

Quoting"...which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers."

What is the expressly delegated power?

Oh, right. There is not one.

Velcro said...

Yes, I understand that you have taught constitutional law; my point, which I may not have articulated clearly, is not about specific texts. We probably agree that its absurd to consider the framers anticipating the B-2 bomber. My point is that there is a qualitative difference between providing for the common good of the states, and mandating citizens to BUY healthcare. The burden of proof (of constitutionality) is on the proposed change, in this case the requirement on individual citizens to purchase. And in my mind there is no question that it fails the test.

American Patriot said...

Not that, as a practical matter, it matters anymore, but how do you reconcile your view that Congress can do pretty much anything with the 9th and 10th amendments? Theoretically speaking is there anything left to the States that Congress is not Constitutionally authorized to legislate? Or is it just a matter of having enough people yell for the enlightened rulers in DC to give them things, and thy will be done? Given that federal interference in the healthcare market has been going on for 30+ years (and we are seeing the consequences of that now), and given that one's health and well-being was an issue in the 1770s (people got sick before the existence of the GOP), why weren't the Founders more explicit in granting the federal government authority to regulate/control/dole out medical care?

Darren Lenard Hutchinson said...

American Patriot: I never said Congress could "do pretty much anything." Also, conservatives are the ones who dismiss the Ninth Amendment -- because it describes unlisted rights retained by the people. When liberals assert this as a basis for progressive recognition of rights, conservatives go crazy about "judicial activism." The problem with relying on either the Ninth or the Tenth Amendments is that neither contains any specific information about powers or rights.

As for the remainder of your argument, I find it almost comical that you assert that Congress cannot have any authority over healthcare because the Framers were not "explicit" on this point. This brings up the Air Force argument from which some conservatives have attempted to distance themselves. Not only did the Framers not mention air travel in the Constitution, but they did not even think about it! According to your logic, the Air Force is unconstitutional; also, federal regulation of air travel is also unconstitutional.

Darren Lenard Hutchinson said...

Jmoss: Taxation, spending, commerce....
Velcro: Your argument is reductionist. Congress isnt' simply mandating that people buy healthcare. Congress is mandating coverage as part of a comprehensive regulatory scheme designed to reduce costs and to force insurance companies to cover everyone -- even people with pre-existing conditions. When viewed in light of the policy objectives, it is clear that the mandate relates to interstate commerce. Your reductionist description of the mandate is the equivalent of saying that funding the Air Force is simply the act of Congress buying planes and paying pilots.

American Patriot said...


Unlike Air Force One or ipods (which I'm sure will soon be a 'right'), health issues existed back in the old days when the founders wrote that document that describes the powers granted to the federal government (leaving all others to the States and/or People). So the question as to why they didn't think centralized control/regulation of medical insurance/care was one of those justified powers is pertinent.

Darren Lenard Hutchinson said...

American Patriot: Your argument is illogical. In the same way that air threats did not exist at the framing, medicine was not the urgency it is today. Under your logic, any greater centralization (or even decentralization) in a category for which the Framers had some knowledge is forbidden -- even if the category is appreciably different today (including national defense).

American Patriot said...

It's illogical to believe that "medicine was not the urgency it is today", given that people got sick and had to pay for doctors back then, just as they do today. If you want to argue that government regulation and interference in the health insurance industry has led to a complex and costly mess, hence the urgency to fix it, that's fine. But then you need to show how more government is the solution to the problems caused primarily by government. And when you are done with that, try to explain how the concept known as "insurance" still makes sense when you demand that it cover pre-existing conditions (like buying auto insurance today to cover an accident that happened yesterday). Try to avoid using words like "compassion", when the end result is stealing money from some to give to others.

Or you know what, never mind.

Ben said...

nashville said...

American Patriot: your healthcare argument totally overlooks the fact that health care in the U.S. has changed dramatically since the Constitution was written. Yes, "people got sick and had to pay for doctors back then" - but not anywhere near "just as they do today." Back then, the doctor was working out of a horse and buggy, making his "patient rounds" via circuit ride once a month or so.

The nature of hospital care has changed as well; not surprising, considering the first hospital* founded in America did not exist until 1751. Hospitals then were not part of some nationwide network; they were individually distinct operations, many of whose operating costs were supported by charitable donations. The managed care networks of today and the concept of medical care as an organizational profit opportunity didn't exist until the early 20th century. They definitely exist today, however, and routinely conduct profitable business daily across state lines. How can this *not* be classified as "interstate commerce"?

*By the way, that hospital - Pennsylvania Hospital, founded by Dr. Thomas Bond and Benjamin Franklin - was established by the Pennsylvania Assembly as a *publicly funded* facility for treatment of the indigent sick and mentally ill. So the precedent for publicly funded healthcare was already in existence, even then.

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