The authority of governance for the modern republics of the world comes directly from the consent of the governed. This is very much true for The United States and this thinking informed The Founding Fathers when they created this country. Coupled with the idea that all authority is derived from the consent of the governed is also the concept that people and government would establish a social contract. This also influenced the early framers of The United States. The social contract is often bandied about by those attempting to empower more authority in a centralized government in the name of more services to the people. However, the truth is that our social contract is The United States Constitution. Any other attempt to create some mythical unwritten social contract outside the one we have is a lie to the citizens hearing it. The Constitution defines governments scope of power and with the bill of rights and supporting amendments limits to it as well. The Constitution also clearly defines the rights of its citizens. These are not menu options but guaranteed to every citizen.
What does The Constitution say about the federal governments authority over healthcare? Is it a federal responsibility? Does it fall within the scope of our social contract?
Some think that the Preamble to The Constitution grants authority within the “General Welfare” reference. The first problem with this perspective is that The Preamble to The Constitution does not grant powers or authority. The Preamble is the summary statement. It describes the intent for all that follows. It sets the context on how The Constitution should be viewed. The second problem with the idea that welfare grants power to provide healthcare is that it says promote the general welfare not provide the general welfare. The goal is not to give things to the American people but to create conditions in which the American people can enrich themselves.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Many would reference the commerce clause (Article I, Section 8, Clause 3). The next logical question is, does the commerce clause apply? The original intent of the commerce clause was to grant Congress legislative authority over international commerce and to insure ease and fair trade between the states. However, there are some limitations to the power of the commerce clause (many which are ignored today). Congress has no regulatory authority over commerce that does not cross state lines. Congress also has no authority to prohibit commerce across state lines, it may only regulate. Any regulation under the commerce clause must be applied equally to each state. Equal protection for the states.
The Commerce Clause:
Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
For the sake of the discussion a patient goes to their doctor for a checkup or a procedure. The patient is receiving a service which is commerce but the doctor or even hospital is local, the transaction it never crosses a state or multiple state lines. Thus the commerce clause does not apply. If the patient traveled to another state to receive the service the commerce clause still does not apply because the transaction is again local. The same is true for the purchasing of health insurance All insurance local to the state, so again the commerce clause does not apply.
The law prohibiting the sales of insurance across state lines (McCarran-Ferguson Act) is an interesting case looking at it through an originalist lens. First, the whole act is unconstitutional regardless of previous supreme court rulings. The act is a prohibition on commerce. This alone is a violation of the commerce clause. Congress may not prohibit commerce between the states. The act essentially lets the federal government act with the power and authority of a state but lets it act as all states. This is a violation of the tenth amendment. The irony of the McCarran-Ferguson Act is that it has created complexities for those looking to nationalize the U.S. Healthcare industry. If one thinks about it, The Affordable Care Act violates the McCarran-Ferguson Act by creating a centralized insurance exchange.
The Tenth Amendment:
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.”.
ObamaCare (The Affordable Care Act) attempted to nationalize activities that fall squarely within the authority of the individual states. Additionally, there is no constitutional authority to guarantee any commercial services be mandated to the populace nor for the federal government to require the consumption of a commercial product. These requirements are both a violation of the ninth and tenth amendments to The Constitution as well as a violation of the intent stated in the Prologue. Congress should not be passing laws that take liberty away from the people. The setting up exchanges in place of the state that decided not participate with a state exchange again violated the tenth amendment. The SCOTUS ruling that the word State means whatever the intent of the authors was is a pure violation of historical precedence and calls into question the legitimacy of the supreme court as anything but a political body.
Medicaid and Medicare also have constitutional issues. The very nature of entitlement funding through the federal government with ever increasing expenditures without formal house appropriation bills to fund these programs violates Article I, Section 7, Clause 1. The question here is whether the House of Representatives has the authority to abdicate its constitutional authority to other institutions? Additionally, these programs are bankrupting the Federal government and need to be addressed.
Article I, Section 7, Clause 1:
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills
Every time the federal government has involved itself in healthcare it has driven the costs for everyone up. The simplest truth is that there is no governing authority for the federal government to establish a managing presence in healthcare as well as there being no constitutional mandate to insure that commercial services are made available or consumed. Doing any of these things throws The Constitution onto the scrap heap. If healthcare is to be legally addressed at a national level, The Constitution will need to be amended. Repeal The Affordable Care Act and get out of the way. Let enlightened self-interest and the market place drive the services up and the costs down.