Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong. For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution. Even if the Supreme Court decides that the mandate is constitutional, members of Congress and the president have an independent duty to assess the constitutionality of the legislation they vote on and sign. They all have taken oaths to uphold the Constitution, not merely what the Supreme Court says the Constitution means. If the courts rule that a particular congressional or executive action is unconstitutional, the other branches of government should obey. Otherwise, the courts would be unable to serve as an effective check on legislative and executive power. But no constitutional principle prevents Congress and the president from interpreting their authority more narrowly than the Supreme Court does.
In fairness to the congressional Democrats who support the health insurance mandate, it must be pointed out that the Republicans didn’t exercise constitutional self-restraint back when they controlled Congress. Republican bills such as the ban on partial birth abortion, the No Child Left Behind Act, and others, also pushed federal power well beyond the limits established by the text of the Constitution. And the Republicans made little or no effort to seriously consider constitutional limits on their power beyond those set by court decisions. For the Democrats to live within constitutional constraints that the Republicans ignored might be seen as a kind of unilateral disarmament. I hope that the two parties would agree on mutual disarmament, but I’m not holding my breath that any such thing is likely to happen.
Schapiro also argues that the health care mandate is consistent with federalism in ways that go beyond merely respecting constitutional constraints:
Even if current law does permit a mandate, though, one might ask whether it should....
What the critics’ narrow arguments miss is the power of federalism illustrated by the health care reform efforts. Federalism promotes liberty and innovation by fostering a dialogue among local and national bodies, rather than by inviting courts to draw lines between them.
Massachusetts served as a laboratory with its own attempt to offer comprehensive health care, including an individual mandate. The federal government has learned from that experience. Moreover, the states will play an important role in implementing any national health care system.
What then should we make of state constitutional amendments purporting to bar a federal individual mandate? Such amendments show the value of federalism. State legislatures provide vital platforms for dissenting voices. Such amendments cannot block federal law. But the main point of federalism is to inform public debate, not to invite a court to terminate democratic dialogue.
The health care controversy demonstrates the continuing significance of federalism. Contrary to those impugning the constitutionality of mandates, though, it is a federalism of the people, by the people and for the people, not a federalism of the courts.
“Federalism” can mean many different things to different people. In my view, however, there are important beneficial aspects of federalism that go beyond merely “inform[ing] public debate.” Among these are policy diversity and competition between state governments, which enable people to “vote with their feet” for the policies they prefer. Preserving these benefits of diversity and competition requires enforcement of limits on the power of the central government. Otherwise, both will often be stifled through the imposition of one size fits all centralized solutions. If we want “a federalism of the people, by the people and for the people,” we need constitutional limits on the power of the central government.
If, as Schapiro assumes, the only important purposes of federalism are to facilitate “public debate” and promote experimentation, it’s not clear why we need federalism at all. Public debate can and does occur at the national level too. Indeed, the public and the media usually pay much more attention to proposed federal legislation than to state policies. And a unitary central government can still engage in policy experiments, including ones whose geographic scope is limited. For example, it could establish an experimental health care policy that is limited to one part of the country and then impose it on the rest of the nation if the results prove that the experiment “worked.”
UPDATE: I have eliminated a typo and some minor infelicities that were in the original version of this post.