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Law and Reform, Healthcare and the Forum of Change – Part 1

Currently, there is a debate raging through the nation, asking about and criticizing President Obama’s federalized healthcare plan. Instead of putting more argumentation into an already muddied debate on the need for taxpayer-funded healthcare, I will focus on the forum for the plan. This requires taking a look at the Constitution, the applicability of federal law, and the means by which such laws can be enacted and enforced.

As previously mentioned, I think Congress has overstepped its mandate granted through Article 1 Sections 8 in the United States Constitution. That section states, in part, the following regarding the Powers of Congress:

Section 8 – Powers of Congress

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.

This states, in no uncertain terms, the initial powers granted to Congress. Specifically, they may do what is necessary and proper to execute the long list of things in Section 8, anything else in the Constitution stated to be under federal control, and any power listed in the Constitution as prohibited to the states (under Section 10, for example). Congress is further restrained in what it may do by Section 9 and Amendment 10, which states the following:

Amendment 10 – Powers of the States and People.

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.

This mean that Congress only has the powers given within the Constitution, or restricted from State control by the Constitution. No other powers exist for the United States Federal Government. Those powers are under control of the individual states, and if the states don’t restrict the actions, then they are up to the people to decide. Pre-ratification debate centered on the ability of Congress to pass laws under such broad power, with the Anti-Federalist papers remarking “when the people once part with power, they can seldom or never resume it again but by force”. Debate on such ended with the passage of the Bill of Rights, the last guaranteeing that Congress would be limited from enacting any law that suits their fancy.

Given those limitations, I am in awe at the multitude of things the federal government seeks to control through legislative mandate. The most common “hook” used to circumvent these limitations is combining the necessary and proper clause with the commerce clause in regulating anything that has been or could be involved in interstate commerce. The abusive nature of this should be evident to any who read the commerce clause: “[Congress shall have the Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”. This wording suggests that it is the exchange of goods between parts of the country that should be regulated. That interpretation appears to be strongly upheld in the Federalist Paper 6 – Concerning Dangers from Dissentions Between States:

… The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.

The Founders of these United States saw that the competitive nature of commercial enterprise could be detrimental to the success and prosperity of the unified states. Thus, the commerce clause was included as a means to insure trade would remain free within the republic, because such commerce reduced the chance of war. In fact, it was commerce – or disparity thereof – that sparked the Civil War. Reading the Confederate States of America’s Constitution next to the United States Constitution, it becomes clear that the economy was at the forefront of conflict. States rights played a distant second when one considers the changes made to the CSA’s Constitution, which granted the states manners to raise revenue through regulating their waterways to insuring their economic reality of slavery was upheld. I’m sure in future posts I’ll return to this issue; currently, I use it to illustrate the nature of the “commerce clause” and how its present invocation runs amok through Constitutional intent and construction.

Ultimately, Congress was meant to be – needed to be – limited in its power to gain state support for a federal program. How, then, have we come so far, where the majority of people believe Congress to be empowered to enact almost any law? Moreover, at what level does the Constitution apply to the states? Why is the federal government the wrong forum for healthcare, as currently proposed?  I hope to answer these questions, and maybe more, next week. Until them, cheers!

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Continuing the Discussion

  1. Law and Reform, Healthcare and the Forum of Change – Part 2 – Common Sense Thought Control linked to this post on August 27, 2009

    […] Last week I addressed the Constitutionally mandated limits on the powers of Congress. Today’s topic investigates the history of these limits being violated, how the courts (Supreme, especially) reacted, and the status quo in light of this history. […]



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