In an earlier post I provided a quick and dirty analysis of the question of ObamaCare Exchanges. This post will be one where I go over the principles in which I derived that analysis.
I’d like to start on the Commerce Clause:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
The assumption that “among” means “in” in the presence of the identification of different groups doesn’t make sense if the intention were for Congress regulate all commerce conducted by anyone in the United States. It would be more direct for it to state exactly that Congress regulates all commerce in the United States if that is what this statement means. So what does the word “among” mean?
The Free Merriam-Webster states:
1 : in or through the midst of : surrounded by <hidden among the trees>
2: in company or association with <living among artists>
3: by or through the aggregate of <discontent among the poor>
4: in the number or class of <wittiest among poets> <among other things she was president of her college class>
5: in shares to each of <divided among the heirs>
6a : through the reciprocal acts of <quarrel among themselves>
6b : through the joint action of <made a fortune among themselves>
All of these reference an ambiance of from one to another for the meaning of “among.” The enumerated power stated in the Constitution draws a clear distinction between monolithic and multiplicity, distinguishes differences between outside and inside in the use of the word “with”, as in “with foreign Nations” and “with the Indian Tribes.” Obviously the Constitution couldn’t grant regulation of commerce among foreign sovereigns. But it is a reasonable assumption to make for a national government to regulate what goes on within its borders to the extent that power has been delegated. And the use of the phrase “among the several States” unequivocally states the level of delegated authority by naming States directly. It doesn’t say “among the people,” “in the States,” or even “in the United States;” and it does not mean that. It means what it says: “among the several States,”
Beyond semantics, the history of the period is more than enough to inform that the Commerce Clause doesn’t grant the authority to regulate commerce as has been assumed in ObamaCare. That level of authority would never have passed muster with the Virginia Legislature that was then bursting at the seams with Anti-Federalists who had to be convinced to vote for ratification. They were concerned with the thought of creating a tool of monolithic tyranny; and when they ratified the Constitution, they attached a statement to the ratification stating that if the Federal Government oversteps Virginia’s understanding of the Constitution that it would not be bound to oblige. In other words, it reserved the right to nullify any act of Congress it deemed out of the scope of delegated powers. Virginia exercised that reservation in 2010, shortly after ObamaCare was signed into law.
Another argument made by proponents of ObamaCare is that the enormity of commercial problems in the healthcare markets presents authority for the Federal Government to implement ObamaCare under the Necessary and Proper Clause. I respectfully disagree.
The basis of the Necessary and Proper Clause is to cover the nitty-gritty details of carrying out powers that are delegated. For example, Congress has been granted the power to establish a uniform rule of immigration. Let’s suppose that the uniform rule adopted requires some interaction with the States; like perhaps they were required to register all immigrants within their borders. But the authority to require States to register all immigrants is not specifically granted, and the power to establish an immigration system would be diminished. This is where the Necessary and Proper Clause comes in, as it allows Congress to assume a power that isn’t specifically delegated in order to carry out one that is.
In the case of ObamaCare, it is already prohibited to purchase health insurance across State lines. Therefore, there is no interstate calamity of health insurance for the Federal Government to regulate or solve; and it cannot assume a power that is not specifically delegated in order to carry out a power that has not been delegated under the Necessary and Proper Clause. Some things are an issue States must deal with. But of course the 10th Amendment provides that it is also within the authority of the States to not deal with them. The Federal Government may not like that, but it’s just tough luck absent a Constitutional amendment that provides the specific authority to deal with the problem.
I have gone over the meaning of the General Welfare Clause and the power to tax already (here). So I won’t rehash those arguments here.
Going into the nullification of ObamaCare, as I said in my earlier post, it depends on how the individual States that have nullified ObamaCare actually did it in regard to the question of the exchanges. What was the intent of nullification? To me, it would be wrong to nullify the entire Act because there are things in it that might be proper exercises of the Commerce Clause; and in that regard, lack of cooperation can get all participants rightfully into a pile of trouble. Nullification of the individual mandate, for example, is probably a safe choice if the intent is to do nothing but protest, but is ineffective if the purpose of nullifying is to rip the teeth out of ObamaCare on the whole and prevent it from flowering into full-blown nationalized healthcare which I believe States might accomplish if they band together.
The exchanges are where the enforcement of the insurance mandates happen by herding the market activity onto the exchanges as the only place where those transactions can be carried out and providing requirements for transactions to take place (ObamaCare abuses the State police power by requiring States to enforce ObamaCare mandates on the exchanges in lieu of Federal authority to do so). If States do not cooperate in having exchanges, it is like closing their eyes to the Constitutional questions involved and doing nothing about it while citizens are bent over a barrel without even the courtesy of a blindfold or the use of lube. Alternatively, if States do not have exchanges and allow other forms of insurance markets in their borders as if ObamaCare never existed, that would require individuals to break the law in a very matter of fact way. I doubt it would happen and citizens will still be bent over the barrel.
In the suggestion I outlined in my previous post, the States would be most exposed to confrontation by not enforcing ObamaCare mandates on the exchanges that they set up, a situation where ObamaCare would end up nearly moot. We shouldn’t be asking the public to bear the burden of a State-sponsored rejection of ObamaCare which is what would happen if a State that nullifies ObamaCare does not set up an exchange. It is a rather cowardly thing to do to leave it to them, unless the State plans to actively enforce its will to get people out of trouble. That would be ugly and not a good idea. Why invite that kind of confrontation when it is not necessary? It sounds like a way to incense people to the idea of not capitulating to unconstitutional acts instead of protecting their rights to be unmolested as they buy what they want to buy or sell what they want to sell within State borders and State law – the latter of which is what I think the nullification of ObamaCare should accomplish.
In summary, not setting up an exchange is a bad idea because we want free market activity that otherwise will be stifled. Not enforcing requirements of the exchanges is the better way to nullify in order to achieve that affect without directly exposing individuals to legal burdens that the State might have problems relieving. The State should do what is necessary to take the burden of nullification upon itself or it will not work and ObamaCare will end up winning. We’ve suffered enough losses, and it’s time to stop setting ourselves up to do just that.