March 22, 2011
To the Members of the 112th Congress:
Do the powers granted by the Constitution authorize the federal government to require private citizens to purchase health insurance policies? Leading progressive politicians and intellectuals dismiss this question as not serious—in their view the question is closed, irrevocably settled by the triumph of the New Deal. Nonetheless, the nation is taking it seriously, and is engaged in a historic constitutional deliberation on the question.
This individual mandate, as it has come to be called, is widely considered to be crucial to the Patient Protection and Affordable Care Act (PPACA), the “Obamacare” law enacted in 2010. It is considered crucial because the law prohibits health insurance companies from refusing to sell policies to people on the basis of pre-existing medical conditions, and from imposing a lifetime cap on the dollar amount of reimbursements. In light of these provisions, it is reasonable to expect that without an individual mandate, many people will respond to Obamacare’s incentives by waiting until they’re seriously ill to buy insurance. No health insurance company could survive if forced to operate under that arrangement, in the same way no property insurance company could survive if its customers could wait until their houses were on fire to buy homeowner’s policies.
As part of our constitutional deliberations, lawsuits have been filed against PPACA, with mixed results; some federal judges have upheld the constitutionality of the individual mandate, and others have deemed it unconstitutional. While the question makes its uncertain way to the Supreme Court, American citizens who are not necessarily judges, scholars or lawyers continue to wrestle with it as a matter of politics, in light of the larger question: What can the federal government do under the Constitution, and what can’t it do?
America has an instructive history of considering this question. The first big fight over it concerned the federal power to create a Bank of the United States. When President George Washington’s Secretary of the Treasury, Alexander Hamilton, proposed such a bank in 1791, Secretary of State Thomas Jefferson objected. He contended that because the power to create a bank was “not among the powers specially enumerated” in the Constitution, its establishment would be “a single step beyond the boundaries” drawn around the federal government, which would lead it to “take possession of a boundless field of power, no longer susceptible of any definition.” Hamilton’s position was that for each power the Constitution confers on the government it also and necessarily confers “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power,” unless the Constitution specifically denies a particular exercise of power to the federal government. Hamilton’s argument persuaded Washington to sign rather than veto the bill creating a Bank of the United States.
Twenty-eight years later, Hamilton’s and Washington’s view was upheld in the famous Supreme Court decision, McCulloch vs. Maryland (1819). As Chief Justice John Marshall wrote for the Court: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” But Marshall also wrote that the government of the United States “is acknowledged by all to be one of enumerated powers,” and the “question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.”
The debate over Obamacare shows that, as Justice Marshall expected, the question about where to draw the line between legitimate and illegitimate exercises of federal authority is still very much alive in the American constitutional conversation. Jefferson, so to speak, continues to argue with Hamilton. Those who challenge the constitutionality of the law seem concerned, among other things, at the “boundless field of power” Congress seems to claim when it asserts a power to compel all Americans to enter into whatever private economic relationships Congress deems convenient to its purposes. Federal district court judge Roger Vinson expressed some of this concern in the Florida case, State of Florida v. United States Department of Health and Human Services, where he wrote that “Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.”
It is true, as I remarked in my last letter, that with the entrenching and expanding of the New Deal and the Great Society, America has reached a point where “the federal government can do just about anything it wants, and can do it just about any way it wants.” Our progressive politicians and intellectuals insist that this condition is irreversible—beyond serious question. The movement of American politics over the past two years seems to be proving that this is not the case. And so the progressive insistence that the question is closed gets louder and more desperate. Just opening the question is a significant achievement, though it leaves much statesman’s work still to do—as Hamilton and Jefferson teach us. We can learn much from both of them as we continue to recover the kind of constitutional reasoning these letters hope to help restore to governing in our country.