Wednesday, August 19, 2009

Is ObamaCare Constitutional?

This is a brilliant blog post about whether the Obama Healthcare plan is consitutional or not. Clearly from an orginalist standpoint, it would not be. But the author, Prof. Rob Natelson, makes four really good potential arguments for its unconstitutionality:

1. Enumerated powers. There is no power in the Constitution delegated to Congress to enact this legislation. Natelson notes:
None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To 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.
The problem is that I find it unlikely to be supported on anything other than the "General Welfare clause," i.e. Congress can spend for the general welfare. Now, other factors do raise their head, but Congress and the Courts have relied upon the General welfare clause of many other purposes and the Commerce Power is unlikely to survive.

2. Excessive Delegation. Sorry, Professor Natelson, but this is the weakest part of the argument. Yes, Congress cannot delegate too much power to the executive branch to come up with regulations, but they do it all the time. Additionally, there is the Administrative Procedures Act which, at least in theory gives Congress the final say so over Executive Branch regulations that are drafted. I would have to research, but I imagine you can count on one hand the number of times that a Congress has killed regulations promulgated by an Administration of the same party as the party that controls Congress. The fact is, Congress routinely delegates large and broad powers to craft regulations and exercises very little oversight of what comes out of the agencies. The Court's have upheld it and I don't see any change on the horizon, no matter how expansive the program is or may be.

3. Substantive Due Process. This is likely to be the most successful argument. Roe v. Wade and a whole host of other major cases have turned on substantive due process, and Roe in particular put conversations between a doctor and a patient more or less off limits from government intrusion (same for things like birth control, see Griswold v. Connecticut). Given the descriptions of programs (even the far less hyperbolic ones like "Death Panels") there is a real opportunity for a massive intrusion into the doctor/patient dialog and even the most liberal judges are going to have a hard time justifying such an intrustion given the long line of cases dealing with substantive due process in the healthcare arena.

4. Tenth Amendment/States Rights. In a age where some states are going to start asserting their "Constitutional" rights, you can bet this one will get some play in more conservative states and circles. But aside from an "unfunded mandate" argument, opponents will have a hard time making this particular case. However, one matter that could be of use is the right of the states to regulate the medical professions. As it stands now, doctors, nurses and other medical professionals are licenses and regulated by the states and while the requirements for admission are not all that dissimilar from state to state, there are differences and it has long been the purview of the states to regulate these practitioners. Would a nationalized healthcare plan co-opt or preempt the states in this, their traditionaly role? How would medical professionals be licensed?

There are some interesting comments as well. I particularly liked this one:
I have already remarked on several Internet fora the irony of having the same folks who have been claiming that abortion ought to be a private matter between a woman and her doctor now starting to claim (explicitly or otherwise) that every other medical decision ought to become a matter for your loving, caring federal bureaucrat.


If that’s an idea good enough for the pro-abortion crowd, it’s an idea good enough for everybody.

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