In the coming days, weeks, months, and years, the conversation about what direction to take the health care reform debate in our country will undoubtedly continue. There is no question that because the bill which passed today is imperfect, there will be hundreds of amendments passed and proposed by both sides in order to improve upon its long term effectiveness. This has ultimately been the case with every major piece of legislation passed into law since the inception of our country. And when the dust settles, most progressives would argue that it’s better to have a starting point on which to build on than to remain committed to the unsustainable status quo.
Knowing this, Republican Attorney Generals still insist on fighting the new law in the courts, deeming the bill unconstitutional due to the upcoming federal mandate requiring everyone purchase health care insurance by 2014. Similar fights have been launched in the past, but as you will see, the Federal Commerce Clause gives the United States Congress the power to enact laws which transcend state lines. Ultimately, the leaders of these uphill fights have ended up on the wrong side of history.
The Tenth Amendment to the Constitution states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Though at first glance the text may leave one to believe that the states can basically do anything they please at the expense of Federal Law, the Supreme Court has consistently maintained a different viewpoint on what the text should be interpreted to mean.
According to the Supreme Court in US v Darby, “The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.” This text will surely be quoted from in upcoming debates over the constitutionality of the new law.
When combined with the Commerce Clause, which states “The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” the influence of the Tenth Amendment on the issue of repeal of a law passed by the Congress and the President becomes minute. States already adhere to many federal mandates, such as wearing seat belts, car insurance, speed limits, and the age limits for alcohol and cigarette use. Thus, it seems unlikely that a move to repeal by the minority party, in the courts or in the Congress, will be a successful endeavor.
Given these facts, and the common knowledge that as the minority party the GOP must carefully pick its battles, does it seem wise for the RNC to dedicate so much of its political capital to a cause which is destined to fail in the courts? Would Republicans not be wiser to concentrate on coming together on the basis of constructing a new agenda of ideas as opposed to trying to repeal new laws? And finally, having themselves used the Federal Commerce Clause in the past to enact interstate legislation; does the GOP ultimately run the risk of looking hypocritical by challenging this bill?
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