Background info

It’s hardly news now that with the recent addition of North Dakota to the list, the attorneys general from 16 of the united states are now suing Congress for the unconstitutionality of its health insurance reform.  Virginia was the earliest, and in the time since it took the initiative, 15 others have banded together in something of a class-action suit.  The other participants are: Alabama, Colorado, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.  Hooray!  That’s more states than we had to rebel against England.

But there’s a problem…

The scope of the injustice

Imagine that an intruder breaks into your home, steals your valuables, violates your daughter, then you take him to court for damaging the lock on your front door.  That’s a bit like the states’ registered grievance against the federal government: the states are suing over the unconstitutionality of the federal government mandating purchases for the citizenry.  The fed’s violation of the U.S. Constitution goes well beyond this aspect of health insurance reform.

What’s the problem with the states’ limited scope?  We’re adding precedent to the idea that it’s licit for the federal government to fix prices for private industry, to dictate what must be covered in every insurance product (covering children with pre-existing conditions), to require interstate conformity of products (participating in exchanges), and so forth.

What’s the big issue at hand?

The big issue is that the federal government does not have the right to dictate matters of commerce* and industry to us.

With good reason, delegates at the Constitutional Convention (ca. 1787) were concerned over the potentiality of the federal government assuming greater power than it was intended to have.  Some delegates were in favour of spelling out just what the states’ rights were, in order that they not be trampled by the federal government.  Others were opposed, thinking that by enumerating states’ rights, those rights would be inadvertently limited to what was written in the Constitution, when in fact, the delegates’ intent was to grant the states every right not mentioned in the Constitution.

Long story short: a compromise.  The Constitution is meant to limit the federal government’s power, but appended to the Constitution was the Bill of Rights, ten amendments which spell out certain individual and states’ rights.

Reserved powers

Amendment 10, the final amendment in the Bill of Rights, reserves for the states and citizens all powers not mentioned in the Constitution.

Amendment X.  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.

So what powers is the federal government supposed to have, according to the document of original U.S. law?

• Tax.
• Regulate interstate and international commerce and commerce with Amerindians.
• Treaty with other nations.
• Coin money.  Regulate currency, standards, and measures.
• Declare war.  Raise and maintain military.
• Regulate naturalization of citizens.

(Please comment below if I’m missing any, and I’ll add them up here.)

Anything there about telling private businesses how to do their jobs within states?  Anything there about regulating citizens’ health insurance or health care?  Anything in there that begins to let Congress and Barry Obama reform private industries?

Catch-22: The “necessary and proper” clause

So the Constitution gives all non-enumerated rights to the states, but it includes a loophole, one which judicators can use to wreak havoc: the Necessary and Proper Clause (Article I, Section 8, Clause 18).  This final clause of Article I grants Congress any powers needed to execute the powers mentioned above.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Does this clause actually provide legal grounds for what the Congress is doing in health care reform?  It scarcely appears so to me, but the Supreme Court justices and I have our disagreements.

A closing line from James Madison

Here’s a line from James Madison in the Federalist Papers #45, which sums up my mind on the matter:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States 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.

Tune in tomorrow for part 2 of “States Sue for Freedom.”

*Yes, the Commerce Clause of the Constitution (Article I, Section 8, Clause 3) gives it the power to regulate interstate trade.  But insurance is not sold between states.  Each insurance company has to be licensed in each of the states where it peddles its products.