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The mandate to buy health-insurance may be an unconstitutional encroachment of the U.S. Government onto the liberty of its citizens. Furthermore, the rigid federal rules in the health-insurance reform law of 2010 may represent yet another way by which the state governments have been rendered servile in begging Washington for breathing room--and in a domain that may be rightly theirs, constitutionally (i.e., extrinsic to the enumerated powers assigned to the U.S. Government). The bigger story in this jurdical piece on health care is perhaps whether American federalism itself was finally being extirpated and expunged in favor of consolidation. Yet even if Americans were becoming aware of what had been a tendency for over a century, it is far from certain that they would want to do anything about it.

Ken Cuccinelli, as the Attorney General of Virginia, brought a suit challenging the US Government’s penalty for people not having health insurance (starting in 2014).  Henry Hudson, a US district court judge found that Virginia’s suit had merit and so should not be dismissed because no court has ever ruled on whether it violates the US Constitution for the US Government to require American citizens to purchase a product. “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce.”  By mentioning interstate commerce, the judge was signally that federalism is the real issue (rather than simply limited government in the US). ”This lawsuit is not about health care, it’s about our freedom and about standing up and calling on the federal government to follow the ultimate law of the land — the Constitution,” Ken Cuccinelli said. “The government cannot draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause.” This clause has been one of the principal ways in which the US Government has expanded its powers onto hitherto state powers. In an interview on August 2, 2010 on Fox, Ken Cuccinelli said after the ruling that if the US Government can stretch regulating interstate commerce to include inactivity (i.e., someone not engaged in commerce), there is no limit to the power of the US Government—meaning its enumerated powers are effectively nugatory as a constraint.  He said that if the US Government can get away with using “regulating interstate commerce” even against people not engaged in such commerce (directly or indirectly), federalism in the US is dead.

I found the announcement of the death of American federalism to be stunning, even though I am aware that the balance of power has been shifting to the US Government from those of the several states since at least 1860. Given this trend, I wonder if federalism isn’t rendered null and void already—from the sheer power already amassed by the US Government and the resulting appendix/implementation role of the state governments.  Perhaps if the US Government wins its cases against the States that are suing on the health-insurance mandate, the American people will finally realize that the horse has left the barn.  In addition to providing a governmental check on the US Government, federalism has the advantage of being able to accommodate the diversity that is inevitable in a union of states the size of countries.  The EU, for example, consists of states the size of the American states. It is natural for such a union to be diverse.  A consolidated US should be a baleful sign for the EU as it struggles for “ever closer union,” lest one size is put on all there too.  In general terms, pressures from the consolidation of an empire-scale union tend to build from the inherent hetergeneity. Such pressures can be relieved by dissolution, as in the case of the USSR, or by revolution. It could even be said that the fall of the Roman Empire could be explained by its stymied condition due to its consolidation. One size does not fit all at the empire-level, and the EU’s 27 states and the US’s 50 states constitute that level. Were the US President more oriented to the long-term viability of the American system of public governance, he would have maintained that health-care policy is in the sovereign domain of the states and used the bully pulpit to influence as many of them as he could. That way, there would be a bricollage of heath-care systems to chose from.  Before the US Government passed health-care reform, an American could get universal coverage by living in Massachusetts or a private-sector system by living in Texas.  To conflate these two societies into a muddled compromise does both a disservice. To work, federalism requires a degree of toleration whereby people in Texas are free to have a different system than the one I prefer. Ultimately, it is our lack of tolerance (which is really selfishness) that has killed our federalism. I hope the Europeans are of better character—and more aware of what is happening around them, before it is too late.

The irony here is that I am actually for universal health-care! To the extent that the private sector does not reach universal coverage, I believe that the government is obligated to stand in toguarantee the human right to medical care being fulfilled.  Just as the Coast Guard does not make its rescues contingent on a boater's character or decision to go out during a hurricane warning, seeing that each person in a country legally has a sustenance level of housing, food and medicare care irrespective of effort or character follows from the value that is inherent in any human being, unconditionally. The human right to survival is based on the pain involved in being without shelter, food or medical care when it is needed. Humans are self-aware sentient beings capable of knowing they are in pain. Existential pain, such as in the fear that one might die without medical attention, is intolerable for a human being. If a society of humans can relieve this anxiety, it should--based on the human right not to suffer such pain. This human right is akin to that which precludes torture.  Such treatment is simply beyond the pale of what a human being ought to suffer.

Given the sordid practices of American health insurance companies (such as pre-existing condition and otherwise ending coverage when people get sick—as if buying insurance were only for the good times), I do not believe that the companies should play a central role in the American health-care system. They are tailor-made for the wealthy, who may want (and can afford) health-care beyond that which every citizen should have a right to by virtue of being a human being in a civil society (i.e., social contract). To conflate the extra (i.e., unnecessary) aspects of health-care with those that are germaine to living is perhaps the category mistake at the core of relying on discreet private companies that include and exclude.

In the American context, the particular republics, or states generically-speaking, that constitute the union are the relevant polities. Both constitutionally and in terms of federalism theoretically, the diversity inherent in the empire-scale union can and should find expression at the state level.  According to The Wall Street Journal, President Obama announced at the end of February, 2011, that he "backed a bill in Congress to let states design their own ways to expand insurance coverage sooner under the health-care overhaul, in a nod to governors' complaints that federal rules [were at the time] too rigid." Specifically, the bill would move up to 2014 a part of the 2010 health insurance reform law that would otherwise take effect in 2017. That part allows states to develop alternative health insurance systems of comparable coverage that insure as many people as under the federal law. The governor of Vermont, Peter Shumlin (D) said that the change would make it easier for his state to develop a single-payer plan, under which the state would be the central funder of healthcare. This plan would eliminate the inefficiencies involved in having several private health insurance companies, each of which would be inherently oriented to excluding people deemed "inconvenient" (meaning costly). A feeding machine cannot help to feed; its very nature so determines it to feed. So too, for-profit companies are inexorably profit-seeking.

In terms of federalism, the bill proposed in early 2011 represents a move in the direction whereby federalism can accommodate the diversity inherent in an empire-level political union. However, that the governors were put in the position of having to complain about strictures from the US Government regarding a domain that is properly theirs (assuming providing or mandating health insurance is not one of the enumerated powers) and beg for permission to accommodate their particular circumstances is an indication that American federalism is actually a top-down conditionally (from the top) partially-decentralized consolidated system.  As an alternative, the states could have been free to develop their own systems, with the U.S. Government (ideally with the Governor's Association as the legislative chamber in Congress representing the states) establishing a floor or minimum standard. Of course, it could be argued that if health care is a human right, then universal health-care irrespective of means is that floor. Even so, as in the EU, the member states of the US could be charged with implimenting universal health-care in which ever ways they see fit. This comes close to the bill proposed in early 2011, but the American health-insurance law does far more than set a general directive or standard for the states to implement as they see fit. If the floor is less than universal coverage, then the flexibility could more fully accommodate the diversity that is inherent in the United States.

In spite of my bias for my ideological position on healthcare as a human right, I recognize that the majority of the citizens of Oklahoma might disagree with me. That Oklahoma is a polity (and sovereign in its domains) means that it can and should play a role in determining what constitutes human rights. Oklahomians should have the sort of system that matches the ideology expressed by their majority (or super-majority). To say otherwise would be to violate their political right to self-determination. Moreover, it would ignore the American republics that constitute the United States and treat that political union as akin to France or Germany, which are states in another union, the E.U. Indeed, those two states a bit smaller than Texas and Montana, respectively.

As the US is an empire-scale union made up of country-scale (and semi-sovereign) polities, we cannot afford such a mistake. I have to understand what the United States are even as I pontificate on my health-care ideology.  Sadly, this step is rarely evinced by my fellow Americans.  As Sandra O’Conner, retired justice of the US Supreme Court, once said: “Congress is acting like a state legislature.”  I asked her: why don’t you restrain them?  She replied, “It takes five of us.”  That is, it takes five justices to agree to “just say no” to yet another encroachment by the US Government.  Were I to press the justice, I would have pointed out that the US Supreme Court is a branch of that government, and thus that court has an inherent conflict of interest in ruling on conflicts between that government and those of the states. Separation of powers within the US Government (between the branches) notwithstanding, there is still a US Government interest that its three branches share.  Not surprisingly, the overwhelming number of US Supreme Court decisions on federalism have been for the US Government’s position.  In other words, our federal system has a fatal flaw in its very design. I contend that this flaw has made possible, and perhaps even facilitated, the death of American federalism.

Sources:
http://www.foxnews.com/politics/2010/08/02/judge-permits-virginia-health-care-law-challenge-continue/?test=latestnews

http://video.foxnews.com/v/4300198/virginia-suit-against-health-care-law-to-proceed

Janet Adamy, "Obama Offers Skeptical Governors Bigger Role Under the Health Law," The Wall Street Journal, March 1, 2011, p. A4.

According to Newsweek, "Conservatives have been quick to declare that "ObamaCare is on life support" in the wake of federal district court Judge Henry E. Hudson's ruling in Virginia that the Affordable Care Act’s (ACA) requirement to buy health insurance is unconstitutional. But in truth Virginia’s attorney general, Ken Cuccinelli, won only a partial victory. He sought to have the entire law overturned, but instead only the section creating an individual mandate was." This is perplexing to me, as the law contains a clause indicating that if any part is deemed to be unconstitutional, the entire act would fall. (the health insurance industry didn't want to be forced to pay out without being guaranteed the expanded customer base by the U.S. Government).  According to Newsweek, "Judge Hudson was very explicit in his ruling that only the mandate that individuals have coverage and 'directly-dependent provisions which make specific reference' to it will be affected. Technically, this means virtually nothing but the mandate is eliminated. But as a practical matter, the requirements placed on insurance companies to make coverage more generous and available to everyone are economically dependent on the mandate. To keep the rest of the bill in place without the mandate would provoke the wrath of the insurance companies’ powerful lobby and set premiums on an upward-spiraling trajectory. On the upside, Medicaid would still be expanded so the millions of poor who are without health insurance will be insured."  In my comparably small and insignificant view, this is the major significance in the entire law. That is to say, health-care as a right even for the poor is a matter of human rights. Lest the rich poo poo this right because theirs is secure, I can only shake my head in utter disgust; in a civilized society, even a person incapable of working has the right to survive. Not wanting to pay for this right when one enjoys other advantages of living in a society (e.g., police protecting one's property) is sheer selfishness.  I take the right to survival to be the kernel worth saving in Obamacare even if scrooges poo poo's the plight of their less fortunate fellow citizens while ignoring their own self-centeredness. Hudson also declined to prevent the law’s implementation while the courts sort out the constitutional question. The ACA has been upheld as constitutional by two district courts. According to Newsweek, "Hudson’s decision actually guarantees only one thing: that the constitutionality of the individual mandate will ultimately be decided by the Supreme Court. Legal experts are unclear which way the high court will go

The question of whether the mandate is constitutional hinges on whether it falls within the federal government's enumerated power to regulate commerce. In particular, the question is whether inactivity can be regulated. Failure to buy insurance is inactivity.  Is a decision to buy or not to buy to be counted as an activity?  Or is requiring Americans to carry health insurance a way of regulating how they pay for something that every American will use (i.e., health-care)?  It seems to me that this question has been overly simplied, whereas the past "logic" used by the U.S. Supreme Court to ok expansions in the commerce clause is notoriously invalid even as it has been generally accepted in American society.

Historically, the U.S. Supreme Court has not resisted ever deepening and broadening encroachments by the national legislature and executive on the States by means of the enumerated power of regulating interstate commerce.  In 1942, for example, the court held in Wickard v. Filburn—the most relevant precedent for this case—that a farmer growing wheat for his own chickens, above a maximum of growth allowed per acre at the time, was subject to federal regulation under the commerce clause because the resulting extent to which a farmer does not buy wheat to feed his chickens on the market affects the national market price of wheat. "This goes a step further than Wickard because it’s the omission of action that’s being defined as the interstate act," says Jonathan Turley, a constitutional law instructor at George Washington University. Critics of the mandate say that if you start defining choices not to buy things as actions that affect interstate commerce then there is no limit on what Congress can make you buy. In my view, the action/inaction distinction is not vital to whether the power of the U.S. Government is potentially unlimited under the commerce clause; <em>Wickard </em>itself evinces the potential unlimitedness in the power; even growing wheat for one's own use can be deemed as interstate commerce even though the wheat never even crosses the road.  It is the tenuous multiple links of inference that dwarfs even the action/inaction distinction. The legalese in the inferences has already supported Congress in using the interstate commerce clause to reach a variety of objects (Morrison and Lopez being the two exceptions, but even they allow for indirect effects to the commerce). As another example involving what one grows and consumes on one's property, in 2005 in Gonzales, the court held that the commerce clause entitles the federal government to outlaw California residents from growing marijuana for personal medicinal use. Of course, the government's purpose here was not to regulate commerce; the policy was against illegal drugs being used. This is precisely how the commerce clause can be stretched to cover virtually anything.

If the court throws out the health mandate, it might be just as well as the State governments really should be the ones to address health-care for the uninsured, given our system of federalism. If the mandate is declared to be unconstitutional, I would advise the justices to do it in a way that also exterpates the inferences of legalese that have for more than one hundred years enabled the federal government to encroach on the States--effectively ending the check on government that is afforded by federalism. In other words, the court could use the case as a means of setting definitive limits on the enumerated powers.  Otherwise, Congress will return to the clause for yet another encroachment using linkages--simply sidestepping regulating inaction. The case can occasion a wake-up call concerning the consolidation of governmental power at the center at the expense of the innate diversity that exists in an empire-scale polity. I doubt very much that the court will sound the alarm--seeing the forest through the trees--even if the mandate is declared to be unconstitutional. We simply are not good at looking at things in terms of the big picture; it is no accident that most members of Congress are lawyers.

Source: http://www.newsweek.com/2010/12/15/will-the-supreme-court-overturn-health-care-reform.html%22%3Ehttp://www.newsweek.com/2010/12/15/will-the-supreme-court-overturn-health-care-reform.html