The states’ rights argument against health care: An ugly tradition

Commentators will be debating the constitutionality of the individual mandate right up until the day the Supreme Court issues its decision. The New York Times had an editorial this week criticizing the reasoning of a Georgetown law professor, Randy Barnett. He recently argued before a Senate Judiciary Committee that, if the mandate is upheld, “Congress would have all the discretionary power of a king and the American people would be reduced to its subjects.”

But after reading the analysis of another Georgetown law professor, David Cole, my mind is at rest. Cole explains why the arguments about “tax” vs. “penalty” or “activity” vs. “inactivity” are irrelevant. He readily dismisses the “make them eat broccoli” argument. (emphasis in original)

A decision to sustain the individual mandate would not mean that Congress could require all Americans to exercise or eat only healthy food, as some have suggested. The individual mandate regulates an economic decision that is in turn an essential part of a comprehensive economic regulation of the interstate business of insurance.

What I liked most about Cole’s discussion was the historical perspective he provides on the politics behind opposition to the individual mandate. (emphasis added)

The roots of the ideological divide, moreover, run deep. The principal constitutional issue at stake—the extent of Congress’s authority to pass laws governing Americans’ lives—has separated conservatives and liberals since the beginning of the Republic. “States’ rights” was the South’s rallying cry in its effort to retain slavery before the Civil War, and to defend racial segregation from federal intervention thereafter. From the turn of the century through the early years of the New Deal, conservatives successfully invoked “states’ rights” to interpret Congress’s power over interstate commerce narrowly and thereby invalidate progressive federal laws designed to protect workers and consumers from big business. …

Opposition to health care reform is ultimately not rooted in a conception of state versus federal power. It’s founded instead on an individualistic, libertarian objection to a governmental program that imposes a collective solution to a social problem. While Judge [Henry] Hudson’s reliance on a distinction between activity and inactivity makes little sense from the standpoint of federal versus state power, it intuitively appeals to the libertarian’s desire to be left alone. But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others. So rather than directly claim such a right, the law’s opponents resort to states’ rights.

In this respect, Judge Hudson [of Virginia] and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked states’ rights not because they cared about the rights of states, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.

Here, too, opponents of health care reform are not really seeking to vindicate the power of states to regulate health care. Rather, they are counting on the fact that if they succeed with this legal gambit, the powerful interests arrayed against health care reform—the insurance industry, doctors, and drug companies—will easily overwhelm any efforts at meaningful reform in most states. Unless the Supreme Court is willing to rewrite hundreds of years of jurisprudence, however, they will not succeed.

Resources:

Image: The New York Review of Books

Editorial, A Debate Bigger Than Reform, The New York Times, February 9, 2011

David Cole, Is Health Care Reform Unconstitutional?, The New York Review of Books, February 24, 2011