The spirit of James Madison will be a busy one over the coming weeks and months. As more than a few state capitals will be evoking the name of the great founder in response to the Democrat’s passage of health care. Despite the final votes and the media feeding frenzy that Obamacare is some how a great victory for America after a long and bitter struggle, another age-old one will begin very shortly in its place.
It will center round the proper relationship between state governments and the federal government. Additionally, a few legal questions follow, “does the national government have the right?” And by asking that question, another one quickly arises; can the federal government force individuals to purchase health insurance?
Legally, it all depends. Federalism is the system by which states are guaranteed a protected existence and the authority to make final decisions on many governmental activities and programs. Such were the initiatives carried out by Reagan during his administration and even extended, in parts, under Clinton when he turned over the many welfare and social programs to the states. The devolution revolution has been scaling back the federal government in some areas ever since. Though this administration and its president is changing that trend.
How this relates to a Obama health care mandate and the states can be addressed through legal and historical precedence. James Madison wrote in Federalist No. 46 that the state and federal governments “are in fact but different agents and trustees of the people, constituted with different powers.” In Federalist No. 28 Hamilton explained citizens could use one against the other to keep the system in balance. “If the rights are invaded by either, they can make use of the other as the instrument of regress.”
There are dozens of states – 37 by my latest count –appealing to states’ sovereignty as a legal way to challenge federal encroachment to be delivered in the coming Washington mandate. Indeed these states are well within their rights to challenge the federal government. State and local units of government do their part to establish decentralization and they would cease to be federal units the moment they stop existing independent of the national government. This is not a unitary system for good reasons. Our Constitution and system of government was derived from the beliefs and dispositions of America. A careful agreement was decided from the beginning that distributed power well enough to fit a “large and extended Republic” for many years to follow. Provided, of course, we could maintain the agreement.
Whether the 10th Amendment and the 5th Amendment will hold up in the courts against Article I of the constitution and the “necessary and proper” clause are other matters and remains to be seen. However, calling on Madison once more, he stated in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Obamacare will certainly challenge the nation over if it wants a national system to be dependent on Washington even more so than was the case in the 1930s on into the 1960s, or continue to build upon the reemergence of dual federalism that began in the 1980s. Federalism allows for a division in power and how laws and polices can vary from state to state. To what extent has been the real concern. Every American generation has dealt — either successfully or unsuccessfully — with the issue. As President Wilson observed, “Because it is a question of growth, every successive state of our political and economical development gives it a new aspect, makes it a new question.”
Indeed, and we have a wonderful opportunity to answer it.
Commentary
Well said, Jason.
Thanks, Mike. I hope we are a little head of the curve on this one. It is debate that is bound to pick up.
The track record of states’ successes in the courts against the federal government on issues of federalism is not encouraging.