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Friday, May 20, 2011

A Health-Insurance Mandate Consistent with Federalism

On June 7, 2011, according to the Huffington Post, “three judges on the 11th Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.” Chief Judge Joel Dubina, who had been appointed by President George H.W. Bush, "struck early by asking the government's attorney 'if we uphold the individual mandate in this case, are there any limits on Congressional power?' Circuit Judges Frank Hull and Stanley Marcus, who were both appointed by President Bill Clinton, echoed his concerns later in the hearing.”

Paul Clement, who was retained by the 26 states for a fee of $250,000, argued, according to The New York Times, "that by requiring Americans to buy insurance, the act unconstitutionally conscripted citizens into the stream of commerce. He stressed that the insurance mandate constituted an unprecedented assertion of federal power that could leave virtually every human act — and passive choice — subject to Congress’s whim. . . . 'It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual,'" he said. Accordingly, Judge Marcus asked, "If [Congress] could compel this, what purchase could they not compel?"

Acting U.S. Solicitor Neal Katyal "sought to ease [the juctices'] concerns by saying the legislative branch can only exercise its powers to regulate commerce if it will have a substantial effect on the economy and solve a national, not local, problem. Health care coverage, he said, is unique because of the billions of dollars shifted in the economy when Americans without coverage seek medical care. ‘That's what stops the slippery slope,’ he said,” according to the Huffington Post. Katyal characterized the inactivity as an active decision not to pay for insurance.

However, not buying something is not a refusal to pay; rather, one must have decided to purchase something for him or her to then refuse to pay for it. Furthermore, what problem deemed serious could not be characterized as "national"? Furthermore, if economic activity (or inactivity) within a state can be deemed subject to interstate commerce regulation because of an impact of the national economy, then Congress could conceivably reach deep into a state's solely-domestic transactions even though no actual interstate commerce is involved. Legalistically, impact on is not the same thing as interstate commerce itself. So aggregating the impact of an Iowa farmer growing wheat solely for his own consumption as if thousands of people were doing so and thus having a material impact on the national wheat market, as in the Wicker case, represents a federal over-reach by its judicial branch on behalf of its legislative and executive branches (i.e., involving a structural conflict of interest).

 Even having the states implement Congressional legislation does not go far enough in limiting Congressional power to being enumerated, and thus in line with a viable federalism wherein two systems of government check each other.

Newt Gingrich, former Speaker of the U.S. House of Representatives, had said on May 15, 2011 that people should be required to buy health insurance.  In particular, he said he would like to see the mandate implemented at the state level. Accordingly, on the next day, he said, “I am against any effort to impose a federal mandate on anyone because it is fundamentally wrong and I believe unconstitutional.”  In short, he was suggesting that a federal mandate would ironically compromise the federal system. Of course, the notion of a health-insurance mandate consistent with federalism would not mean that the mandate determined by Congress would be implemented at the state level; rather, the state governments themselves would have the prerogative to decide whether to have a mandate at all. The United States would form a quilt of various health-care laws reflecting the inherent diversity within an empire-scale union, with the general government regulating interstate health-care transfers so states do not discriminate against “out-of-staters.” Such a federal system would be in balance, rather than consolidated or dissipated. The two systems of government—the U.S. Government and the state governments—would be able to check each other, with the citizens being the winners in terms of liberty.


Greg Bluestein, “Health Care Reform Law Faces Key Test in Conservative Atlanta Court,” The Huffington Post, June 8, 2011.

Kevin Sack, "Judges Weigh Limits of Health Law's Powers," The New York Times, June 9, 2011.

Naftali Bendavid and Jonathan Weisman, “Medicare Revamp Exposes Divisions Within the GOP,” The Wall Street Journal, May 17, 2011, p. A6.