When over time the attention of our country to the path of greatness established by the founders has diminished to the point that it is no longer acknowledged by government institutions then a major disruption of thought and action is necessary to refocus attention on what has been lost. To this end a constitutional crisis is both warranted and necessary to bring the focus of our country and the Supreme Court back to the principles of a limited constitutional government that established our country and made it exceptional. No greater proof of these statements is necessary than the recent Supreme Court decision that demonstrates that current political outcomes are more important to the justices than the constitution.
Fortunately or unfortunately just such a crisis is within reach. The Supreme Court decision on the Patient Protection and Affordable Care Act (Obamacare) did not declare the act constitutional, only that the mandate was constitutional. All of the other provisions in the 2000 plus pages other than the spending clause issues have not been challenged or decided upon. And most importantly no decision has been made concerning whether the constitution grants the Federal Government the power to regulate, dictate, and ration the health care of every citizen. If not granted, then that power belongs to the states or the people as provided by the tenth amendment.
The answer to whether health care is a power delegated to the Federal Government in the constitution is determined by considering the English common law principle of state “police power” which was practiced by the early colonies. Police power was actually a limitation on private rights when the states needed it for the good of the community such as quarantines during disease breakouts. Traditionally police power also meant the ability to enact laws for the general welfare, regulate individual rights for the public interest, and promote the public health, safety, morals and the general well-being of the people.
Further and most importantly this power was reserved by the states when they adopted the constitution which was confirmed by several Supreme Court decisions in early America. In Holmes v Jennison (1840) the Supreme Court states “Undoubtedly they may remove from among them any person guilty of or charged with crimes, and may arrest and imprison them in order to effect this object. This is a part of the ordinary police powers of the states, which is necessary to their very existence and which they have never surrendered to the general government.”
A previous case even more forcefully states that health laws were left with the states when they adopted the constitution. In City of New York v Miln (1837) the Supreme Court states “Let us see what powers are left with the states. The Federalist, No 45, speaking of this subject, says the powers reserved to the several states all extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people and the internal order, improvement and prosperity of the state. And this Court, in the case of Gibbons v. Ogden,f 9 Wheat. 203, which will hereafter be more particularly noticed, in speaking of the inspection laws of the states, say they form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government, all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” These decisions are reaffirmed by other cases including Lochner v New York (1905) and United States v Morrison (2000) discussed later.
Thus established by the Supreme Court as a power not delegated to the Federal Government by the constitution, the tenth amendment places this power over health care with the states or the people. The governors of 26 states, a majority of states, challenged the constitutionality of the individual mandate and suffered a political loss. Now the proper course of action for these like-minded Governors is to continue the effort to protect their citizens by having their legislatures pass identical laws or resolutions nullifying Obamacare in their states and using the tenth amendment as the rationale. The nullifying law should exempt the state’s citizens from any penalties, taxes, requirements to buy health insurance, or any other provisions of Obamacare.
A constitutional crisis will likely follow since the action of so many cannot go unchallenged by the Federal Government and yet they would be faced with the fact that more than half of the states will be using decided law to exercise their constitutional rights to protect their citizens through the tenth amendment. This current government will no doubt believe it has the authority to force compliance since the law is constitutional, they believe, until determined otherwise by the Supreme Court. Likely they will attempt to apply the commerce clause since that usually gives the government unlimited power. However a recent ruling in United States v Morrison (2000) states “Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States…..” and later in the same paragraph “ We always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power” emphasis theirs. That is the commerce clause does not give the government power over the state’s police powers. So it would be a risky path for the government to challenge the states in the courts for the facts and precedence are in the states favor and the recent court’s Obamacare decision being obviously and publicly political will likely prevent a second political decision. The administration will probably try to force compliance through what ever other means are available and thus the constitutional crisis between the Federal and State Governments will have begun.
But along with this crisis will be the focus of the country on our constitution and the principle of limited government and how far we have strayed from that path. A second objective of the Governors actions is overturning Obamacare. If the Governors having started the process by challenging two provisions fail to carry through, the options left to the states and we the people to reclaim sovereignty will become fewer and increasingly disruptive. The grand opportunity to confirm that the tenth amendment is a meaningful part of the constitution is now and could disappear after the election if repeal is promised. If repeal is possible it can occur anytime. But this opportunity must not be squandered by our Governors for the case is strong, the country needs to refocus on our founding principles, and the government usurpation of our liberty must be exposed and ended. I am confident that once the constitutional crisis is started it will play out to an almost certain favorable outcome for our country and for the future.