The Battle Over Healthcare: Part I

The battle in the Supreme Court began yesterday in a series of oral arguments about President Obama's Patient Protection and Affordable Care Act. The politics of this issue are clearly defined: conservatives want the Act struck down for a myriad of reasons, it violates the Freedom of Religion Clause, it destroys federalism between the federal government and state governments, and the law represents a massive expansion of the Commerce Clause, whereas liberals believe the Act is valid because it is within the Commerce Clause, and the Act is a tax which is Constitutionally sound. If you want a primer on the structure of the monumental oral arguments being held this week you can find it here. The argument is broken down into four discrete parts; a discussion about the Anti-Injunction Act, the individual mandate, severability, and Medicaid expansion, the least controversial of the four issues. Much ink has been spilled about what each of the four issues means for both ideological sides. The legal crux of the arguments this week is bound in the strictures of the Commerce Clause and its role in federal authority. Although the politics are exciting and will be dealt with in due course, I do not want to write about that now. Far more interesting in the oral arguments this week are the vestiges of a centuries long debate this country has had since the founding: the relationship between Congress and the state governments.

Congress' interactions with state government have been an issue before the Constitution even existed. The primordial attempt by the nation to structure the relationship between these two governments was ensconced in the Articles of Confederation. There, the Articles subordinated the national Congress to the whims of state governments. For example, to levy a tax required the direction and authority of the state governments before Congress could consider the issue. Articles of Confederation of 1781, art. XIII, para. 2. The Articles went on to state that many of Congress' enumerated powers were not effective unless nine of the thirteen states agreed with Congress. Articles of Confederation at art. IX para. 6. The theory was that Congress should have limited power because states, as sovereign entities, were expected to look after their own affairs. Under the Articles, Congress existed to deal mainly with declaring war, mediating disputes between states, and regulate national currency, while respecting the states' right not to have its own limits infringed. Philosophically this structure made sense to the drafters of the Articles. State government was the embodiment of government control, it was removed from the excess of national governments, and ultimately the Articles reflected a friendship between the states wherein each state was responsible for its internal affairs with minimal risk of intrusion from national concerns.

The Articles of Confederation were quickly replaced by the Constitution. After the Articles' inception, tensions between and within the states arose. States were dealing with a lack of hard currency, started issuing paper money, and lacked the ability to raise local armed forces that could deal with internal dissent. Congress ability to garner support from nine states was difficult, particularly in dealing with interstate commerce and internal conflict. In 1787 Congress sent delegates to a convention in Philadelphia, wherein the current Constitution was created. Most significantly from the Philadelphia Convention the order between national government and state government was reversed. Article I section 8 of the Constitution expanded Congress powers and rather than subordinating them to state government approval, state governments were required to obey. See U.S. Const. art. I, § 8; U.S. Const. art. VI. It was readily apparent to opponents of the Constitution that it would greatly expand Congress' powers and also reduce the states' sovereign powers by making federal laws supreme over state demands. See Brutus, Essay V. Critics also realized that terms in the Constitution such as "necessary and proper" were so vague that Congress could define any number of items as necessary and proper to facilitating its other powers, thereby eliminating many state legislative powers. Brutus, Essay V.

Despite numerous objections, the Constitution was established, but that did not end the debate. For centuries the Court has been asked to determine if Congress enumerated powers are expansive enough to trammel state rights. Frequently the Supreme Court has been called to determine the metes and bounds of federal power. A stark example is the Commerce Clause. As simple as it is powerful, the clause states that Congress shall have the power to regulate commerce among the several States. Combined with the ability to make laws that are necessary and proper to carry out the Commerce Clause, over centuries it has been used to expand Congress' role at the expense of states. Today the Commerce Clause is a central justification for Congress' legislative acts, from the Affordable Care Act, the Civil Rights Act of 1964, the New Deal, to the right to deal with interstate navigation. For each of these issues the Court has been asked to determine the federal government's power over state government. See Katzenbach v. McClung; Heart of Atlanta Motel v. U.S.; Wickard v. Filburn; U.S. v. Darby Lumber Co.; and Gibbons v. Ogden.

The point of all the above is that the Supreme Court is once again called to mediate a national debate between those who have favored less federal power and those who have favored more. This week's oral argument is unique only in terms of its form. The background of this week's oral arguments has been something that Americans have long debated and no matter the outcome in this most recent incantation of the debate, we should not expect the Court’s decision to end the matter.