The U.S. Supreme Court has agreed to hear arguments on whether The Patient Protection and Affordable Care Act ("Obamacare") is constitutional.
The high court has stated that it will rule on the issues by July 4, 2012. As I see it, the court will consider two principal issues:
-- Could Congress rationally determine that it had power to create a national health care system (and that it needed to do so), and
-- Could Congress fund the system, by requiring Americans (or their employers) either to buy their own health insurance, or to pay a penalty.
Whether the legislation will be declared "constitutional" or "unconstitutional," will probably be based on the court's reading of Article 8 [1] of the U. S. Constitution, which provides:
"The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States;"
The first issue is this: Could Congress fairly conclude that it might pass Obamacare (and needed to do so) in furtherance of the general welfare?
Arguments on that issue were first made almost immediately after our constitution was adopted. Those who argue that the law should be upheld will in all likelihood cite the 1791 Report on Manufactures to the House of Representatives by Alexander Hamilton, the first secretary of the Treasury.
"The National Legislature has express authority 'to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare,' with no other qualifications than (a) that 'all duties, imposts and excises, shall be uniform throughout the United States; and (b) that no capitation or other direct tax shall be laid, unless in proportion to numbers, ascertained by a census or enumeration, taken on the principles prescribed in the constitution, and (c) that no tax or duty shall be laid on articles exported from any State.'
"These three qualifications excepted, the power to raise money is plenary and indefinite, and the objects to which it may be appropriated, are no less comprehensive than the payment of the public debts, and the providing for the common defence and general welfare. The terms 'general welfare' were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise, numerous exigencies incident to the affairs of a nation would have been left without a provision The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the "general welfare;" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
"It is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. ... The only qualification of the generality of the phrase in question, which seems to be admissible, is this: That the object, to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot.
"No objection ought to arise to this construction, from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare. A power to appropriate money with this latitude, which is granted, too, in express terms, would not carry a power to do any other thing not authorized in the constitution, either expressly or by fair implication."
Those, on the other hand, who believe the law to be unconstitutional will probably reference the writings of John C. Calhoun, especially his South Carolina Exposition and Protest of 1828. (Note, however, that Calhoun's position squares rather nicely with the last paragraph of Hamilton's report. But Hamilton's last paragraph has been largely forgotten or ignored by Congress and the courts.) Calhoun wrote:
"It is a bold and an unauthorized assumption, that Congress has the power to pronounce what objects belong, and what do not belong to the general welfare; and to appropriate money, at its discretion, to such as it may deem to belong to it.
"No such power is delegated to it -- nor is any such necessary and proper to carry into execution those which are delegated.
"This (the Constitution) pronounced to what limits the general welfare extended, and beyond which it did not extend.
"To prove, then, that any particular object belongs to the general welfare of the States of the Union, it is necessary to show that it is included in some one of the delegated powers, or is necessary and proper to carry some one of them into effect -- before a tax can be laid or money appropriated to effect it.
"For Congress, then, to undertake to pronounce what does, or what does not belong to the general welfare -- without regard to the extent of the delegated powers -- is to usurp the highest authority -- one belonging exclusively to the people of the several States in their sovereign capacity. "
I think Congress could fairly find that health care is a "nationwide" issue, and not merely a "local issue," and that it therefore could enact health care legislation in an effort to provide for the "general welfare." In the 1930s, Congress determined that it could provide for old-age pensions (Social Security) in furtherance of the "general welfare." The Supreme Court deferred to that Congressional determination and upheld the Social Security Act. I think it will likewise determine that Congress can enact national health care legislation in furtherance of the "general welfare."
Posted Online: Dec. 07, 2011, 2:27 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2011, John Donald O'Shea
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