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Our congressional representatives swear an oath under God (don’t get me started about why God needs to be involved) to “… support, defend… and bear true faith and allegiance…” to our Constitution. Yet, when Speaker of the House Nancy Pelosi was asked publicly under what constitutional authority congress could issue a mandate for U.S. citizens to purchase health care insurance, she responded. “Are you serious? Are you serious?”. This has been widely reported by the media that is actually concerned about the constitutionality of aspects of the current ‘health care reform’ initiative lurching it’s way through the hallowed halls of our congress. However, as usual, the short memory of the media only gives you half the story, and as a libertarian, I feel compelled to expound on it.
It turns out there was already a mandate in place to provide health care for all people in the U.S. In 1986, Congress enacted the Emergency Medical Treatment & Labor Act (EMTALA) to ensure public access to emergency services regardless of ability to pay. Section 1867 of the Social Security Act imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide a medical screening examination (MSE) when a request is made for examination or treatment for an emergency medical condition (EMC), including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with EMCs. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented.
The effect of this legislation is a mandate that health care providers treat many people free of charge. For a moment, let’s set aside the morality of such a law. This legislation provides a great insight about how the congress uses it’s power to create the social outcomes it desires, with no respect for the private ownership of property. Note that the law only constrains “Medicare-participating hospitals” – i.e.; the institutions under which Congress controls reimbursement through the Health Care Finance Administration (the federal bureaucracy that controls Medicare/Medicaid). In theory, a hospital could refuse care if it chose to not participate in Medicare but that is completely impractical, given the amount of reimbursement Medicare controls for health care. This slight of hand technically gets around the taking of private property capriciously, which would no doubt wouldn’t survive a Supreme Court challenge but in effect is the same.
It’s worth noting that this law has another unintended effect. Most uninsured people in this country know that if they find themselves in need of lifesaving care, that they will receive it, so when deciding whether or not to carry insurance coverage, some individual’s make the calculation that they indeed have de-facto catastrophic insurance coverage provided by the government already. Even worse, these folks don’t get preventative care resulting in the eventual treatment for many ailments costing much more then it might have been otherwise. But even this isn’t my key point.
The very construction of this law illuminates the limits of Congressional authority. It knew that it didn’t have the authority to make hospitals provide care – I mean, if it could do that, it could tell hotels that it couldn’t turn away guests in bad weather if they didn’t have the money to pay, right? That restaurants couldn’t refuse to serve food to the starving too – got it yet? The congress can’t just capriciously take one group of societies property and give it to another to suit it’s whimsy, regardless of the merit of the cause. It simply doesn’t have the power.
So, where does the authority of the federal government to mandate individuals to purchase health insurance come from? It doesn’t come from the “general welfare clause” – this has been widely litigated and explored by our courts and is a settled matter. No, the Congress claims that this power comes from the “Interstate Commerce Clause”, giving them authority to regulate commerce between states. That’s it – that’s the thin reed of justification that this law rests upon. Now remember, I’m not discussing the merits of ‘health care reform’ – that is a different issue. My point is that if we are a nation governed by the rule of law rather than the whim of politicians, we need to ensure that our government is acting within its legal authority. Regardless of whether you agree with the interpretation of Interstate Commerce Clause, it’s certainly worth discussing and explaining, yes? The Speaker of the House should not react with incredulity when asked about the legal basis for a law congress intends to pass, and if she does, what does it reveal about the condition of our republic?
I’ll close with a rather lengthy quote from James Madison, a founder of our country and legislator in our first congress. He made this statement in 1792, during a debate about whether the constitution granted the federal government the right to ‘cut canals’ – (the congress ultimately decided it didn’t.)
“I, sir, have always conceived—I believe those who proposed the Constitution conceived—it is still more fully known, and more material to observe, that those who ratified the Constitution conceived—that this is not an indefinite government, deriving its powers from the general terms (to pay the debts and provide for the common defence and general welfare) prefixed to the specified powers—but a limited government, tied down to the specified powers, which explain and define the general terms. “
“The language held in various discussions of this house is a proof that the doctrine (of implied open ended general welfare powers) in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted.”
“In short, sir, without going farther into the subject, which I should not have here touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America; and what inferences might be drawn, or what consequences ensue, from such a step, it is incumbent on us all to consider.” (James Madison, Speech on the U.S. House floor, 07 February 1792. Quote in: Jonathan Elliot, Debates on the Adoption of the Federal Constitution, Vol. 4, p.428-429)
