"Obamacare," the constitution, and democracy: the heart of the matter.

• Author: Morris, Jane Anne
• Position: Thinking Politically

In 2012, the US Supreme Court rules on the constitutionality of the Obama Health Care Plan (OHCP), officially the Patient Protection and Affordable Care Act (2010). (1) Is OHCP constitutional? What is a defensible and prudent green position on this question?

Shrill arguments accompanied several cases challenging the law as they worked their way through the federal courts. Governors and/or attorneys general of 26 states jointly brought one of the cases. Most are Republicans, but Democrats also supported the challenges. At least 15 states passed laws or constitutional amendments opposing the OHCP. (2) This level of official, organized state opposition to a duly passed Congressional Act may not be unprecedented, but neither is it an everyday occurrence.

The largely Republican-led attack comes despite the fact that the major bone of contention--the "individual mandate"--was first proposed by the conservative Heritage Foundation in 1989, and twice introduced to Congress in Republican-sponsored bills in 1993. (3)

Before dipping into minutiae, I offer some framing observations.

* 1. Whatever one's opinion on the health care law, the future of federal environmental law, labor law, gun control, and human and civil rights law will be affected by how the Justices rule on OHCP.

* 2. The OHCP case is only peripherally about health care. The spectacle of the US Supreme Court considering this high-profile case puts on display the breadth and depth of power wielded by the this court. Because liberals and conservatives each accuse the court of judicial activism only when they disagree with its rulings, little attention is paid to the disturbing uniqueness of the Supreme Court, literally the most powerful court in the history of the world. (4)

I bring to the issue of the constitutionality of OHCP considerable baggage, but it is good baggage. First, I am agnostic about the OHCP; second, my most recent book is a history of the constitutional clause that is at the center of debate. (5)

As a longtime proponent of single payer health care, I find that our current unjust, inefficient, appallingly complex health care system ("capitalized medicine") has little to recommend it. (5) The OHCP would rearrange costs and benefits somewhat without bringing overall improvement. Losers include the unemployed, underemployed, and uninsured, who would face a forced choice between buying health insurance (not the same as health care), and paying a fine for not doing so. (This feature of OHCP is known as the "individual mandate.") The OHCP is not a single payer system, not a step toward one, and not an improvement on current health care in the US. Whether it's "constitutional" or not is for me no more consequential than the difference between regular and menthol cigarettes.

As author of a book about the constitutional clause critical parts of the law depend on (6), I see the debate over the law's constitutionality in the context of two centuries of judicial rulings on that clause. (7) Consequently, I am buffeted not by the huffing and puffing of supporters or opponents, but the gusts of history.

The two faces of constitutionality

To say, "States can require car insurance, so the US can require health insurance"--a one-liner I have heard often--is to conflate two incomparable circumstances. State and federal governments are not just different-sized governments like little carrots and big carrots: they are different types of governments with different powers. Federal laws are subject not to a higher or lower constitutional standard than are state laws, but a different one.

It is only a slight oversimplification to say that state laws are constitutional unless they conflict with the Constitution, while federal laws are unconstitutional unless they are authorized by it. (8) Every country's constitution lays out how power is distributed between the national government and other parts. The US Constitution outlines what the federal government can do, what the federal government cannot do, and what the states cannot do. There is no listing of what the states can do (9) because all other powers reside in the state governments, or in the people, as outlined in the Tenth Amendment. (10) I do not consider the US Constitution to be sacred, and would make many changes if I had the chance to rewrite it. But currently, our constitutionally established national government is a federal one.

That makes the US a nation of delegated or enumerated powers: certain specific powers (and those only) are delegated by the people and the states (via the Constitution) to the federal government. If the Constitution were a diet, the federal government would choose from a limited list of permissible foods, but state governments could pick anything unless it appeared on a Do Not Eat list. Congress (and the federal government) can do only what is specifically allowed by the Constitution, whereas states can do anything that is not prohibited.

In light of the enormous power currently exercised by the federal government, it seems far-fetched that it is one of limited power. The bridge between the limited-power structure of the US Constitution, and the expansive nature of national power wielded today, is the interpretive power of the Supreme Court. Woodrow Wilson once remarked that the Supreme Court was like a "constitutional convention in continuous session." (11)

Latching onto the Constitution

Anything Congress does must be justified by linkage to something in the Constitution that makes it "allowable." For example, the original Social Security Act (1935) is hooked to the general welfare clause. (12) Often, Acts of Congress begin with litanies of purposes specifically worded to hook them to one or more constitutional clauses that justify them. Such tags help to inoculate laws against being declared unconstitutional by the judiciary. The general welfare clause was tapped again to justify the power of Congress to establish NASA in 1958. (13)

"Naked" Congressional Acts lacking protective language pegging them to a constitutional clause are more vulnerable to the charge that nothing in the Constitution permits such actions. Unprotected Congressional Acts are more susceptible to being declared unconstitutional by the judiciary, which is often prompted...