Friday, February 4, 2011
The U.S. Senate on Health Insurance Reform: On the Applicability of the Bundesrat and the E.U.'s Council of Ministers
Posted by Find Insurance Online at 2:07 AMA second federal judge ruled at the end of January, 2011 that it is unconstitutional for Congress under the interstate commerce clause of the U.S. Constitution to enact a health care law requiring Americans to purchase health insurance. Unlike the Federal judge in Virginia who had ruled against the law the month before, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law. Such an invalidation would of course be in the interest of the health-insurance industry lobby; the managers of health insurance companies are opposed to providing expanded coverage to the uninsured without the mandated expanded pool that would spread out the risk. One might wonder whether the lobby has any muscle with the Federal courts. Nonetheless, I want to raise another point that may have been missed from all the tussle over the jurisprudence. Specifically, 26 states were parties to the legal challenge in Pensacola. That is to say, more than half of the state governments were opposed to the Affordable Care Act. It is notable, therefore, that the U.S. Senate, which represents the States and was intended to give them a direct agency in the general (or federal) government, passed the Act by 60 votes in favor. In other words, this scenario suggests that there is indeed a difference between the interests of the state governments and those of the states’ respective U.S. senators. Were the governors sitting as the U.S. Senate, the Act would not have passed; the heads of state/chief executives of the states voting against the Act would have had a means of forestalling what they viewed as an encroachment by the U.S. Government.
Having the people of a state elect the state’s U.S. senators is from this perspective insufficient for the state’s government to be able to protect itself from being overrun by the Federal Government. Such an overrunning eviscerates the intergovernmental checks that federalism itself can provide. Had governors and their cabinet members occupied the U.S. Senate (a cabinet member of a particular area could replace the governors when a complex matter on a particular policy topic is debated), the fact that those officials would have business back at their respective states would have operated to restrict the domains of the Congress closer to those in the enumerated powers. That is, the structure or design of the federal system would have worked better to keep the two systems of government (that of the states and the union) in balance. An expansive U.S. Congress would work against the very structure wherein officials of the state governments would be the members (stretched too thin) of the U.S. Senate. The history of the U.S. Senate has been quite the contrary.
According to William Riker, U.S. Senators in the 19th century were chosen by state legislatures rather than by the governors. This made it more difficult to hold the U.S. senators accountable to those governments; indeed, the degree of instruction that the senators received from their respective legislatures was, according to Alberta Sbragia, “neither high nor well enforced.” She concludes that “no one in Congress represents the institutional interests of state governments.” (p. 281) Certainly since 1913, “senators represent the electorate, not the state legislature or the governor’s office.” (Sbragia, p. 281). Elmer Schattschneider points out that well back in the period before 1913, “in a series of decisions, the Senate first established the principle that individual senators are not bound by the instructions of state legislatures.” (p. 14) That is to say, state legislatures could appoint but not hold their appointees to their instructions. Additionally, the legislatures did not pay them (the U.S. Treasury did), and neither could the state legislative bodies recall them. It is no wonder there was corruption involving the senators. It was as a democractic reaction to this that the senators became electable by the states’ respective electorates. As representative democracy was already well-established in the U.S. House of Representatives, I contend that had the American electorate looked at Europe in 1913, they might have found a solution that would give the governments of the American states direct agency in the U.S. Government (while keeping the U.S. House as a democratic check on the senate).
Gunter Kisker points to Germany’s “Senate”, the Bundesrat, as speaking for the “States as States” more than the U.S. Senate did even before 1913, after which senators were elected by the voters of the states (p. 37). The power of the Länder in the German system comes in part “from their direct participation in the decisionmaking process at the federal level [as the members of the Bundesrat, the upper chamber of the German legislature].” (Sbragia, p. 284) More specifically, the Bundesrat is composed of ministers in the cabinets of the respective executives of the Länder, thus giving the Länder governments an efficient and vital means to stop federal legislation not in the interest of the Länder.
However, one could argue that Germany is roughly the size of Montana, and that what works at that scale might not be efficacious at the level of a union of such states. The is the major oversight in Sbragia’s comparison of the U.S. with the E.U.’s state of Germany. In other words, she makes a category mistake, being focused solely on the make-up of two legislative bodies. In fact, she concludes that the German federal system is the closest to compare with that of the EU, even though Germany is itself a state in the EU. What holds for a subunit does not necessarily play well at the level of the whole.
Fortunately, there is apt comparison that came be made with the U.S. Senate. One can look at the European Union, whose European Council consists of the heads of state or government of the state governments (e.g., France, Germany, and Spain), and whose Council of Ministers consists of ministers of the state governments. Together, the European Council and the Council of Ministers represent the state governments inside the EU’s government. That is to say, they function as akin to the U.S. Senate in the government of the American Union. Representing the state governments was to be one of the purposes of the U.S. Senate. In Federalist No. 39, Madison argues that the equal vote (two each) per State in the U.S. Senate "is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty." He goes on to note that both big and small states would want to "guard, by every possible expedient, against an improper consolidation of the States into one simple republic." (Hamilton et al, p. 301) On June 25 in the U.S. Constitutional Convention, Madison observed that if the States are to be preserved, they ought to have the power of self-defence. He noted that “the only mode left of giving it to them, was by allowing them to appoint the [second] branch of the [National] Legislature.” (Madison, p. 191) Col. Mason, on August 13 in the convention, pointed out that “the Senate did not represent the people, but the States in their political character.” (Madison, p. 443) We can conclude from these statements that the change ratified in 1913 concerning how U.S. senators would be selected made a difference concerning the federal system itself, as the agency of the states within the general government was both vital to the federal system remaining in balance and to the related ability of the state governments to protect themselves against encroachments by the general government. Yet nobody apparently saw this in 1913, being so full of populist reform. It is notable that there were voices in the federal convention urging that the state governments be given greater means of control of their delegates to the U.S. Senate. Luther Martin, for example, said on August 14 in the convention, “As the Senate is to represent the States, the members of it ought to be paid by the States.” (Madison, p. 459) Better yet, he should have proposed that the members of the proposed senate be the heads of state/executives of the States, for such a direct agency in the mechanisms of the general government would have enabled the state governments to resist the expanding appetite of Congress. This rather obvious solution was not even brought up in the convention, whose delegates were more concerned about dissolution than consolidation under the federal head.
With regard to the topic of health insurance and federalism, all this is to say, state officials unhappy with the Affordable Care Act might be wise to note the difference between having to go to federal court and voting against the Act in the U.S. Senate, and then reflect on whether the U.S. Constitution itself is flawed with respect to maintaining a viable federal system of governance wherein two sets of government have the wherewithal to act as checks on each other. Lest the cause of liberty be lost, we might all reflect on our system of public governance itself rather than bounce around titillating issues like moths overexcited by oncoming headlights. Are we looking at the lights, or to what they are illuminating?
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Sources:
Alexander Hamilton, James Madison and John Jay, The Federalist, T. Ball, ed. (Cambridge: Cambridge University Press, 2003).
Gunter Kisker, “West German Federal Constitutional Court as Guardian of the Federal System,” Publius 19 (Fall 1989).
James Madison, Notes in the Federal Convention of 1787 (New York: Norton, 1987).
William H. Riker, “The Senate and American Federalism,” in William H. Riker, ed., Development of American Federalism (Boston: Kluwer, 1987), pp. 135-56.
Gunter Kisker, “West German Federal Constitutional Court as Guardian of the Federal System,” Publius 19 (Fall 1989).
James Madison, Notes in the Federal Convention of 1787 (New York: Norton, 1987).
William H. Riker, “The Senate and American Federalism,” in William H. Riker, ed., Development of American Federalism (Boston: Kluwer, 1987), pp. 135-56.
Alberta Sbragia, “Thinking about the European Future: the Uses of Comparison,” in Euro-Politics: Institutions and Policymaking in the “New” European Community , Alberta M. Sbragia, ed. (Washington, D.C.: The Brookings Institution, 1992), pp. 257-292.
Elmer E. Schattschneider, Semisovereign People: A Realist’s View of Democracy in America (Holt, Rinehart, and Winston, 1960).
For a discussion of the debates in Germany on whether to choose a Bundesrat or a U.S. Senate as an upper chamber, see Peter H. Merkl, The Origin of the West German Republic (Oxford: Oxford University Press, 1963), pp. 66-73; and John Ford Golay, The Founding of the Federal Republic of Germany (University of Chicago Press, 1958), pp. 44-59. Applying this debate in reference to the U.S. Supreme Court being able to elongate Congressional powers through the years without amendments being proposed by the U.S. Senate would be an interesting topic to explore.
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