The Danger of a Legal Challenge to Health Reform

A current argument made by the Right Wing against health care reform, is that the Democratic plan is unconstitutional. They rely on the oldie but goodie that the Constitution does not say anything about the regulation of health care, so the founders must not have intended to allow the Federal Government to have much of a role, if any. Since the New Deal, The courts have held many times now that the Federal Government has a great deal of power via the Commerce Clause. The current Right Wing argument is, in essence, that those cases were wrongly decided. While the claim is interesting, it is ridiculously outdated. To return to such an interpretation would lead to the economic collapse of this nation.

The debate over the constitutional federal power to regulate has been going on since 1789. One of the most significant early arguments was the debate over "internal improvements." The Federalists believed the federal government could build roads and canals to aid the new nation. The Democratic-Republicans, led by Jefferson, disagreed. Early on they believed the federal government had no such power. A good history of this debate can be found here. If we were to go back that far in our Commerce Clause interpretation, we would not have the Interstate Highway System. Those trucks you see late at night bringing your food and clothes to your local stores, would not be there. You couldn't take that drive to Grandma's house. Luckily, the Jeffersonians reached a somewhat tense compromise with themselves and agreed to a limited approval of internal improvements. I can only assume that the Right Wing would not wish to turn back the clock to pre-Eisenhower and let the interstate highways go to pot.

But I do believe the Right Wing sees a future that pre-dates the New Deal on non-transportation federal powers. I think they hope to see a court disapproval of national health care as the stepping stone to the eventual destruction of Medicare, Medicaid, Social Security, the EPA, and probably even the SEC. Read this, and note that it applies to many things other than health care. They long for the days when there were no labor unions and the owners of a factory could do whatever the hell they please. For some reason, when they think of the good-ole-days, they forget the basis for the lyric "I sold my soul to the company store," and the hellish conditions depicted in "The Jungle."

In short, while there might be policy reasons for killing national health insurance reform, a legal victory based on the Commerce Clause would be extremely dangerous to the economic fabric of the country.