the Bush administration, many within the dominant culture expressed concern
about the constitutionality of detaining several hundred alleged enemy
combatants in Guantanamo.
legal restrictions on abortion are proposed, many express doubt about the
constitutionality of interjecting government between patients and their
those voices have been mostly silent about the constitutionality of empowering
the federal government with decisions over the life, death, and health of
three hundred million Americans.
fact, the constitutional difficulties are profound. This is certainly so
for those who believe the Constitution means what our Founders understood it
to mean. But
it is even true for those interested only in modern Supreme Court
are some of the ways in which current health care proposals potentially clash
with our nation’s Basic Law:
powers. The Constitution
grants the federal government about
thirty-five specific powers– eighteen in Article I, Section 8, and the
rest scattered throughout the document. (The exact number depends on how
you count.) None of those powers seems to authorize control of the
health care system outside the District of Columbia and the federal
be sure, since the late 1930s, the Supreme Court has been tolerant of the
federal welfare state, usually justifying federal ad hoc programs under
specious interpretations of the congressional Commerce Power. But,
except in wartime, the Court has never authorized an expansion of the federal
scope quite as large as what is being proposed now. And in recent years,
both the Court and individual justices – even “liberal” justices –
have said repeatedly that there are boundaries beyond which Congress may not
greatest Chief Justice, John Marshall, once wrote that if Congress were to use
its legitimate powers as a “pretext” for assuming an unauthorized power,
“it would become the painful duty” of the Court “to say that such an act
was not the law of the land.”
health care bills such as the Obama-favored HB 3200 do not even offer a
pretext. The only reference to the Constitution in HB 3200 is a
severability clause that purports to save the remainder of the bill if part is
declared unconstitutional. HB 3200 contains no reference to the Commerce
Power or to any other enumerated power.
Constitution “vests” legislative authority in Congress.
Congress is not permitted to delegate that authority to the executive branch.
This is another realm in which the modern Supreme Court has been lenient,
while affirming that there are limits.
Poultry Corp. v. United States (1935),
a unanimous court struck down a delegation of authority that looked much like
the delegations in some current health care proposals.
Due Process. The
Substantive Due Process doctrine was not contemplated by the Founders, but the
courts have engrafted onto constitutional jurisprudence. The courts
employ this doctrine to invalidate laws they think are unacceptably intrusive
of personal liberty or privacy.
most famous modern Substantive Due Process case is Roe
v. Wade, which struck down state abortion laws that intruded into the
doctor-patient relationship. But the intrusion invalidated in Roe was
insignificant compared to the massive intervention contemplated by schemes
such as HB 3200. “Global budgeting” and “single-payer” plans go
even further, and seem clearly to violate the Supreme Court’s Substantive
Due Process rules.
the Tenth Amendment is merely a declaration that the federal government has no
powers beyond those enumerated in the Constitution. However, the modern
Supreme Court has cited the Tenth Amendment in holding that Congress may not
“commandeer” state decision making in the service of federal goals.
is permissible for Congress to condition grants of funds to the states, if the
conditions are related to the funding program and are not “coercive.”
Thus, in 1986 the Court ruled that Congress may, because of highway safety
issues, reduce highway grants by five percent to states refusing to raise
their drinking ages to 21.
the mandates that some health care plans would impose on states certainly
could be found “coercive,” both because they are excessive (HB 3200, for
instance, would withdraw all Public
Health Service Act money from non-cooperating states) and because they are
unrelated to the program.
major goal of our Constitution and Bill of Rights is to limit government
power, especially federal power. National health care proposals would
increase that power greatly, so it is not surprising that those proposals have
the merits of federal control of health care, moving in that direction is (as
former Justice David Souter might say) a change of “constitutional
dimension.” The proper way to make such a change is not through an
ordinary congressional bill. The proper way is by constitutional
Professor of Law
The University of Montana, and a leading constitutional scholar.
His opinions are his own, and should not be attributed to any other person or