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Argument 2: Congress does not have the power to require states to establish insurance exchanges because it would violate the 10th Amendment.
Several opponents of the new health reform law have been pinning their hopes on the 10th Amendment, which states that:
The powers not delegated [emphasis added] to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
It is descended from an earlier provision in the Articles of Confederation, our nation’s first Constitution, which read:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated [emphasis added] to the United States, in Congress assembled.
Notice the key difference between these clauses. The 10th Amendment no longer contained the word "expressly". By not requiring powers to be expressly delegated to the federal government, the Constitution allows for implied powers. They don’t all have to be listed. So the health care reform is an implied power related to the enumerated power to provide for the "General Welfare". This leads us to the next argument.
Argument 3: The General Welfare Clause has to be interpreted too broadly to include Health Care Reform.
Article 1 Section 8 contains the list of enumerated powers, powers explicitly granted to the Congress, the last of which, Clause 18, being The Necessary and Proper Clause (also known as the Elastic Clause).
The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In other words, Congress can make laws to ensure that the things in the list happen. One of those items on the list is Article 1 Section 8 Clause 1, the General Welfare Clause:
The Congress shall have power - To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare [emphasis added] of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
What does "General Welfare" mean? To Thomas Jefferson, James Madison, and other Anti-federalists, providing for the general welfare meant the general welfare of the government, for the explicitly named powers it had been given in Article 1 Section 8. Jefferson stated that "the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [(Congress)] are not to lay taxes [at their pleasure] for any purpose they please; but only to pay the debts or provide for the welfare of the Union."
To Alexander Hamilton, George Washington and other Federalists, providing for the general welfare had a much broader meaning. From the viewpoint of the Federalists, it meant that Congress could, through enumerated or implied powers, lay taxes to provide for any program that benefited the nation as a whole. So long as it benefited the nation in general and not a particular state or region. "General welfare", in essence, meant the "common good".
Who was right? Well, oddly enough, when the phrase "provide for the common defence and general welfare" was added to the Constitution at the Philadelphia Convention, it was approved unanimously and without debate! During the early years of the Republic, there were many fights over that simple phrase and the government went back and forth from broad to strict construction of the term, depending on who was in power.
It wasn’t until 1936, with United States v. Butler, that the Supreme Court finally weighed in on the subject and came down on the side of Broad Construction. As it stands, the General Welfare is, to quote Associate Justice Joseph Story’s 1833 "Commentaries on the Constitution of the United States":
The true test is whether the object be of a local character and local use or whether it be of general benefit to the States. If it be purely local Congress cannot constitutionally appropriate money for the object. But if the benefit be general it matters not whether in point of locality it be in one State or several whether it be of large or of small extent its nature and character determine the right and Congress may appropriate money in aid of it for it is then in a just sense for the general welfare.
So, in this installment, I’ve tried to lay out the case for why the 10th Amendment does not restrict the power of Congress with regards to implied powers related to the General Welfare Clause and that the Broad Construction of that clause allows for attempts to improve the common good like Health Care Reform.
Next up, arguments that the new law is a violation of the Commerce Clause.