I thought we settled that one at Appomattox.
Tim Pawlenty was supposed to be one of the sane Republican candidates for President.
Everything’s relative, I guess.
Of course, Pawlenty doesn’t really mean it; he’s just pandering to the Republican base. But this tells you what a lunatic base he has to pander to.
Hey, quick housekeeping note: the link to the next post that used to appear in the upper right-hand corner is missing from this post, and from the several previous posts, too.
Well, there actually ARE two completely independent and separate sovereignties in the US constitutional system: federal sovereignty and state sovereignty, with each having absolute power vs the other over those matters that are designated to each by the document.
So it’s not outright bizarre to talk about state sovereignty. For example, each state has plenary authority with regard to its exercise of the police power (the authority to regulate for the public health, safety, and welfare); while the federal government has NO police power — it simply cannot regulate for the public health, safety, and welfare, but must regulate under some other authority that does belong to it, such as the Interstate Commerce Clause.
But Pawlenty’s argument IS disingenuous and ridiculous because clearly a national law governing health insurance would be constitutionally authorized under the Interstate Commerce Clause, among other possible constitutional rationales.
Neither the states nor the Federal government are “sovereign.” The people are sovereign.
The Declaration of Independence enunciates this principle of modern democracy clearly.
And sovereignty is inalienable. For example, although we have invaded Iraq, for example, and dictated its laws and government, the Iraqi people remain sovereign throughout. We never “returned sovereignty” to Iraq because the Iraqis never lost it.
Well stated, Michael.
Betsy, is health care an article of interstate commerce? I support a clear cut single-payer plan, Medicare for All, as it is both superior operationally but also philosophically and constitutionally.
On the other hand, a health insurance mandate . . . an order from the feds to buy health insurance from a private, for-profit parasite industry … where’s the constitutional grounding for that?
“I thought we settled that one at Appomattox.”
Well, that’s the problem with settling arguments by shooting people: They only stay settled for as long as the people stay convinced you’ll shoot them otherwise. Bullets don’t persuade, they merely silence.
Realistically, you’re going to have people talking about state sovereignty so long as the 10th amendment remains in the Constitution, and people aren’t shot for mentioning it.
JMG,
I am not Betsy, but I am a lawyer who knows a bit about Congress’ authority under the Commerce Clause, and I assure you that Betsy is right that Congress has the authority under the Commerce Clause to regulate health insurance, including mandating the purchase of health insurance. The Supreme Court has interpreted the Commerce Clause to give Congress the power to regulate INTRAstate commerce that even tenuously affects INTERstate commerce, most recently in Gonzales v. Raich (2005), which held that Congress could prohibit the use of home-grown marijuana, which never crossed state lines, for medical purposes, even where it is legal under state law. Requiring people to purchase health insurance may be viewed as nothing more than a tax and hence constitutional.
Quick question for Henry (or anyone else): a tax is a mandatory payment to a government entity, in return for which citizens are entitled to expect services. They have the right to petition their elected officials if the services are not forthcoming. But with a mandate to purchase health insurance, where do their remedies lie if the services do not materialize? There seems to be a different chain of accountability, but I am not certain how that chain is to be structured if there is an individual mandate to purchase a product from an insurer. I suppose that the insurance commissioners at the state level would be involved, but there seems to be a distinction to be made. Can you clarify for me?
Ed,
You state that “a tax is a mandatory payment to a government entity, in return for which citizens are entitled to expect services. They have the right to petition their elected officials if the services are not forthcoming.” But you can’t mean “entitled” to expect services in a legal sense — only in a moral sense. In other words, you have a right to sue the federal government for services only when the government allows you to; i.e., only when the relevant federal statute grants you a right to sue. Your “right to petition [your] elected officials if the services are not forthcoming” amounts to no more than a First Amendment right to write a letter to your congressperson. Thus, there is no real “chain of accountability” except insofar as a statute prescribes one, so your question amounts to what federal rights the forthcoming health insurance legislation will contain. I don’t know the answer to that, but you’re right that you’d have rights under state law. If a company doesn’t provide what you paid for, you can contact your state insurance commissioner or sue the company under state law for breach of contract.
Henry, as an attorney myself I am not unaware of the line of cases commencing with the astonishing Wickard case (holding that wheat grown for use as forage on a farm came under USDA regulations because wheat as a commodity was an article in interstate commerce). In fact, I think people can be somewhat excused for thinking that the Burger/Rehnquist/Roberts Courts have done much to reduce the Constitution to little more than an awesome Commerce Clause and the Second Amendment.
But despite the dismal recent history I still think the question is worth asking — where specifically would Congress get authority to compel individuals to buy health insurance? No credit for hand waving that the Court has upheld a lot of astonishing things in the past.
Given that health care has itself always been a state function and that insurance regulation has always been a state function, wherefore the power to impose a federal insurance mandate on individuals? Remember too that Medicare and Medicaid are benefits programs, not federal mandates — individuals are free to decline these (and the associated federal money).
And if we can find some clear source of this amazing power — to force people to enrich for-profit companies without offering a public alternative to provide a “regulatory yardstick” (as public power does for private utilities) — what are its limits? That is, if I am a Christian Scientist or other prayer-healing adherent, am I exempt? If I am a woman and my health insurance won’t cover abortions or a full range of contraception (including voluntary sterilization), am I still required to purchase it? If my clinical depression and other mental ailments (bipolar disorder, schizophrenia, etc.) run in my family, am I required to purchase insurance that won’t help me using money that I would otherwise be able to use for treating those, even when the market offers only insurance options that maintain the absurd discrimination against people with brain ailments?
JMG,
You write, “health care has itself always been a state function and that insurance regulation has always been a state function.” But commerce in health care and insurance is commerce, and, if it affects interstate commerce, then Congress may regulate it. In United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944), the Supreme Court held that insurance is interstate commerce. As a consequence, the insurance industry lobbied Congress to enact the McCarran-Ferguson Act, which reserves most (not all) regulation of the business of insurance to the states. The McCarran-Ferguson Act remains in effect, but it means only that Congress has voluntarily relinquished most of its constitutional power to regulate insurance.
In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the First Amendment provides no right to religious exemptions from religiously neutral statutes. (The holding was that the state’s ban of the use of peyote could be applied to its use in religious rituals.) As for “forc[ing] people to enrich for-profit companies,” see Kelo v. City of New London, 545 U.S. 469 (2005), and see the recent bailouts. Your objections to buying insurance that you find inadequate do not raise constitutional questions. Would you be happier if Congress just gave uninsured people health insurance for free, then raised everyone’s taxes to cover the cost, but provided people who already had health insurance with a tax credit equal to the amount of the premiums they pay?