By mandating that citizens buy a consumer product—health insurance—or face a penalty, the stage is set for the U.S. Supreme Court to tell us whether the U.S. Government is one of limited, enumerated powers or a national government free to do anything it pleases. For a constitutionally sick country, it’s a diagnosis we need to know.
Last night Congress sent to the President for his approval the health care bill which the U.S. Senate passed last Christmas Eve. But the bill may accomplish one very important positive thing.
While there is much not to like in the federal health care bill, mandating that citizens purchase a consumer product—health insurance—will undoubtedly bring about a number of lawsuits over the constitutionality of the law by a combination of one or more of the following: advocacy groups, private businesses, individuals and even states. In fact, attorneys general from some states have already said they will sue to enjoin the application of the insurance purchase mandate to their citizens.
For example, the Tennessee State Senate has already passed a bill (Senate Bill 3498) that asserts that Tennesseans have the right to make their own health care decisions, including the purchase of insurance, and instructs the state Attorney General to sue to protect that right. The bill is scheduled to be heard this Wednesday in the Industrial Impact Subcommittee of the state House of Representatives.
The positive, good thing that may come from all of this is that we will find out just how broad the powers of the federal government are under the commerce clause of the U.S. Constitution. In a country that is increasingly constitutionally sick (ignorant of Constitutional and historical principles or, worse yet, unconcerned about constitutional principles), a “diagnosis” by the U.S. Supreme Court of the extent to which our Constitution is on life support is needed.
States Rights vs. Federal Muscle
Just as a person with an unusual physical ailment may not want to know what is wrong for fear it is really bad yet simultaneously may want to know in order to resolve the issue one way or the other, we are in need of a diagnosis of just how much power the Congress has.
The law the state House is considering this week, if ultimately passed, will set up a classic case of state vs. federal government, with the state saying its citizens have certain freedoms and the federal government saying, “No, you don’t.” It will be a “civil war” of sorts waged in the courtroom.
The issue we must confront, if the health care bill is upheld as a constitutionally permissible exercise of the commerce clause power, is what else may Washington tell us we have to buy. For example, different states have different laws about how motorists are protected financially in the event of an automobile accident. Some states have mandatory automobile insurance; others do not. But if the health care bill is constitutionally permissible, then what is to keep Congress from mandating that every citizen must purchase automobile insurance and setting up an insurance czar to make sure you do it.
In other words, if we accept that Congress can mandate the purchase of one consumer product, what other products can they mandate we buy or suffer fines and penalties?
Regardless of the conclusion the U.S. Supreme Court reaches, we will have a diagnosis of the health of our Constitution and the health of the notion of federalism and states’ rights. But like the sick patient, we need a diagnosis. The quickest route to restore constitutional health and take states’ rights off life support is to know how bad the sickness is for then we, as citizens, will know what we need to do.