Last week, I had the opportunity to address an assembly of East Central High School students who were participating in a Constitution Day event called “A Conversation with the Constitution.” We used the Constitution Cafe format to engage students on the constitutional issues surrounding the Patient Protection and Affordable Care Act. I have had the pleasure of serving on the Board of Directors of Democracy Cafe for the past several months and am excited about continuing and expanding our efforts to engage students on current events and the Constitution. Below are the remarks I prepared for the event:
The American Constitution sets the rules and establishes the field upon which all of our political battles are waged. Since the Founding Era, one of those battles- and perhaps the most fundamental philosophical debate- has been about the proper scope of the federal government’s authority to regulate a wide variety of activities in the United States.
We tend to think and talk about this debate as one about civil liberties and equality- from slavery to Emancipation, from Jim Crow to Civil Rights. But since the turn of the 20th century- as the United States rose to become a great industrial leader- the proper role of the federal government has been central to Supreme Court cases and controversies about economics.
Article I of the Constitution gives Congress the power to regulate commerce between the states. When I hear that, I think of a train hauling materials across the Red River from Texas into Oklahoma. For 150 years, the Supreme Court viewed it just that way. The Court would uphold laws addressing a train crossing state lines with materials, but strike down many laws on what it considered local economic matters. For example, if I grow cotton on my farm and sell it at the market a few miles down the road, the Court said that doesn’t touch interstate commerce. Which seems sensible.
But then a Great Depression swept across the nation, and people were desperate for the newly elected President Franklin Roosevelt to provide them with relief. So he pushed for a bold legislative package known as the New Deal, which gave the federal government the power to use emergency measures to provide more economic opportunity to the American people.
The chief problem with the New Deal became that the Supreme Court kept striking down the laws! Saying that the federal government was overreaching its granted power. People were outraged, and after President Roosevelt’s reelection in 1936, the Supreme Court finally relented. The court began granting Congress and the federal government more and more power to regulate the national economy, and this trend continued and accelerated through the 1930s, 40s, 50s and 60s.
Before the New Deal, the Supreme Court said the cotton I grow on my farm doesn’t touch interstate commerce. After the New Deal, the Court reasoned that the cotton I grow on my farm impacts the national price of cotton and does touch interstate commerce. This same line of reasoning applied to every industry.
Health care is no exception. For the last fifty years, medical breakthroughs and technological innovation have improved quality of care and extended our life expectancies. As with most technological breakthroughs, not all of the fruits have been enjoyed equally.
A great lot of people have been bothered that the richest country in the world didn’t provide adequate health care for all of its citizens. Presidents- all Democrats and, yes, even a Republican- have tried to provide a universal system of health care for all Americans for the better part of a century. And until recently, every president failed.
But five years ago, President Obama signed the Patient Protection and Affordable Care Act into law. The Affordable Care Act- also known as Obamacare- financially penalized any citizen who refused to purchase health insurance and could afford to. This law was very controversial for several reasons, but the most important constitutional debate became about whether the commerce clause gave the federal government the power to penalize an individual for his or her refusal to purchase a product.
On one side, people argued that the commerce clause gives the federal government the authority to regulate what people do, but not what the do not do. They argue that “Congress has the power to regulate commerce, not compel it,” and that allowing such a penalty paves the way for a slippery slope and that one day the federal government could require us all to eat broccoli for dinner. I know that I am not the only one in this room who would find this a bit unappetizing.
The folks on the other side have a point too. They say the federal government should have the power to compel each of us to purchase health insurance because of the total impact that the uninsured have on the national health care system. Every one of us who drives a car is required to have auto insurance, so why shouldn’t health insurance be treated the same? They say that providing adequate health care is such a pressing public policy priority that the penalty is definitely connected to interstate commerce.
While the Supreme Court has made a series of decisions upholding the Patient Protection and Affordable Care Act, the debate over the extent of the powers granted to the federal government by the commerce clause is far from over.
It is actually a debate that is never supposed to be fully settled. At the Constitutional Convention almost 230 years ago, they knew that we would be sitting in rooms like this with groups like this discussing how the issues of our time fit into the framework they adopted. So let’s get to it! Happy Constitution Day!