Academic journal article
By Marshall, William P.
Harvard Journal of Law & Public Policy , Vol. 35, No. 1
There is no serious constitutional argument of which I am aware suggesting that the federal government cannot provide free healthcare to every individual in the United States. (1) Nor is there any sound constitutional claim that the United States could not raise taxes or find other sources of revenue to fund such a program. (2)
But as the public reaction to the passage of the Patient Protection and Affordable Care Act (PPACA) (3) makes clear, (4) the constitutional debate over national healthcare is more than a debate over the specifics of constitutional law. Rather it is debate grounded in constitutional culture--or what may be described as the non-legal traditions, narratives, and understandings that constitute our sense of American exceptionalism (5) and help define who we are as a nation and as a people. (6)
This Article addresses whether the creation of a national healthcare program would be consistent with American constitutional culture. Part I briefly expands upon the legal point that there is no constitutional barrier to the enactment of a national healthcare system. Part II.A then identifies and discusses the two aspects of our constitutional culture that militate against the adoption of national healthcare--our belief in rugged individualism and our distrust of government. As this Part notes, our national commitment to these narratives is deep and well-founded. But our national commitment to both of these aspects of our constitutional culture is necessarily measured. Neither the commitment to individualism nor to distrust of government is unlimited in scope; both are constrained by strong and compelling countervailing concerns. Part II.B then presents two equally fundamental aspects of our constitutional culture that support the adoption of a national healthcare system--our commitment to social mobility and our vision of the United States as a land of equal opportunity. This Article concludes that national healthcare fits well within our constitutional traditions and comports with the aspects of American exceptionalism that best define who we are as a nation.
One important caveat: This Article does not purport to address the specific constitutional claims that have been raised in relation to PPACA. Although I believe that PPACA is constitutional, (7) my comments are aimed at the provision of a system of national healthcare more generally.
I. NATIONAL HEALTHCARE AND CONSTITUTIONAL DOCTRINE
It is perhaps not surprising to learn that the passage of Social Security in the 1930s was met with many of the same heated criticisms now aimed at national healthcare. (8) Then, as now, opponents argued that enacting such a program would exceed the constitutional powers of the federal government. (9) Then, as now, opponents argued that the program was fundamentally inconsistent with the vision of limited government and individual freedom that was central to our constitutional foundations. (10) Then, as now, opponents frequently peppered their political rhetoric against Social Security with the claim that the program was akin to socialism. (11)
Despite heated political opposition, the Social Security Act (SSA) (12) passed, but like the passage of the PPACA, statutory enactment did not end the controversy. The battle moved to the courts where opponents argued the SSA was unconstitutional. The challengers relied primarily on Article I of the Constitution, asserting that in enacting the SSA, the Congress exceeded its enumerated powers, and on the Tenth Amendment, arguing that 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." (13) They did not succeed. The Supreme Court, in two major decisions issued on the same day--Helvering v. Davis (14) and Steward Machine Co. v. Davis (15)--found constitutional authority for Congress to create the Social Security program in the expansive wording of Article I, Section 8, Clause 1, which grants Congress the power to tax and spend for "the general Welfare of the United States. …