by Maxford Nelsen
Recently, the Supreme Court heard oral arguments regarding the constitutionality of the 2010 Patient Protection and Affordable Care Act, more commonly known as “Obamacare.” Passed in 2010 by a Democratic Congress and signed into law by President Obama, the sweeping legislation overhauled the nation’s health care system. One of the most important pieces of the 2,000 page behemoth that is currently being examined by the Court is the unprecedented requirement that individuals purchase only government-approved health insurance.
While the Obama administration has simply shrugged off criticisms of Obamacare’s constitutionality, there are legitimate constitutional questions involved in this case.
More importantly, the case brings to light broader problems with our governmental system as currently exercised. In brief, the amendment process has been effectively discarded in favor of judicial rulings that distort the meaning of the Constitution and expand government power.
The fact that the administration is even attempting to justify Obamacare’s constitutionally should cause us to wonder: how did we get here?
As originally written, the Constitution defines the roles, powers, and limitations of each branch of government. Article one, section eight of the U.S. Constitution lists the powers that Congress possesses in a mere eighteen clauses. One of the clauses grants Congress the power “to regulate Commerce with foreign Nations, and among the several States.” This came to be known as the “Commerce Clause.”
In a letter to Joseph Cabell in 1829, James Madison explained that “[the Commerce Clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
In other words, the Clause was simply meant to maintain free trade among the individual states, not to provide justification for new powers for the federal government.
However, the drafters of the Constitution did not believe they had created a perfect, timeless document. They were not traditional old curmudgeons that wanted things to always stay the same. They realized change would be necessary. Since they believed in a government of laws, not of men, they incorporated an amendment process into the Constitution in article five.
For about 150 years, the Supreme Court largely interpreted the Commerce Clause, and others like it, in the narrow way it was intended. Furthermore, because the amendment process is fairly difficult, the government gained little power using this method.
However, with the Great Depression came Franklin Roosevelt and his “New Deal” policies, which significantly extended the government’s control over the economy. Many of FDR’s reforms were initially struck down by the Supreme Court. In response, FDR developed a plan to stack the Court in his favor. Although its unpopularity prevented him from putting the plan into action, the damage had been done. Soon thereafter, the Court began ruling in FDR’s favor, authorizing such programs as minimum wage laws and Social Security.
In many cases, the Court had to adopt a more expansive view of the Commerce Clause to justify a program’s constitutionality. Over decades of rulings, the view of the Commerce Clause has expanded to allow the government to regulate essentially anything that could be perceived as affecting commerce among the states, even though, as Madison explained, the Clause was never intended to be an excuse for government expansion.
Now we find ourselves with the administration defending Obamacare before the Supreme Court, arguing that it can force people to buy government-approved insurance.
If the government were to seek this new authority through the amendment process, it would require a national discourse and widespread approval before the government could legitimately adopt the new power.
James Madison, in Federalist Paper No. 43, notes: “That useful alterations will be suggested by experience, could not but be foreseen… [The amendment process] guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.”
Instead, we have permitted nine justices on the Supreme Court to simply read new powers for the government into constitutional passages which were never meant to support government expansion.
As we continue to forsake a government of laws for a government of men, the Court finally seems to be realizing what it has done. Decades of broad rulings on the Commerce Clause have brought an administration before the Court which believes it has the constitutional authority to regulate anything it wants.
We’ve gone so far that a sweeping expansion of government power can be muscled through a divided Congress on a technicality, against the wishes of a majority of the American public, and when the Court suggests that there are actually limits to government power, our president responds by calling any move to overrule his legislation “unprecedented” and “extraordinary.”
Although there are very practical reasons to oppose Obamacare, the real issue at stake is government power. Do we want to remain a nation grounded on the rule of law and limited government or not? If so, then we need to take a lesson from the Obama’s dangerously cavalier attitude and quickly remember how to use the amendment process.
Nelsen is a senior majoring in political science. Comments can be sent to email@example.com.