Republicans are criticized for not having a plan ready to replace the failed “Obamacare” as most of the 2016 Republican Party presidential contenders had promised its demise if elected. The House of Representatives made over 60 attempts to repeal The Affordable Care Act since its passage in 2010. So why has this not happened with Republicans now in control of the legislative and executive branches of government?
Many Republicans like their new-found power over a seventh of the economy and are reluctant to give it up. They propose allowing insurers to sell across state lines, forming high-risk pools for people with pre-existing conditions, creating a tax credit to help people afford coverage, and “beefing up” health saving accounts. The basic difference between Republicans and Democrats is simply, “We can do it better.” Notice their use of controlling adjectives: allowing, forming, creating and “beefing up.” Health care would remain nationalized.
Missed entirely is that the Constitution allows only the option of repeal. Anything more would require a new amendment to the Constitution transferring a new power, health care, from the states where it resided, to the federal government as per Article V. All power was distributed in 1787. Any rearrangement of that distribution requires a new amendment to the Constitution.
Many do not know that we live under two political systems: one primarily national in function, the other primarily domestic. Thomas Jefferson expressed it best when he said: The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole… . The one is domestic the other the foreign branch of the same government.” It’s called federalism – the two share power and are equal. Neither was to be subservient to the other and each was to have separate duties.
So it is with federal and state governments as Jefferson suggested. The Founders, however, were aware of the nature of all governments to grow. George Washington said it best: “Government is like fire, a dangerous servant and a fearful master.” So one builds a fireplace before one brings fire into his home for warmth so that it does not burn down the home. That fireplace is the Constitution, in particular Article I, Section VIII.
Simply, government grows. To harness this tendency both partners in government were given lists of duties: the federal government Article I, Section VIII. Everything it did was to be clearly linked to an enumerated grant of power. Health care cannot be linked to an existing enumerated grant of power. The States, who created the federal government, retained unto themselves all other powers as per Amendments 9 and 10 of the Constitution. “James Madison wrote: “The powers delegated…to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” That the federal government took this power unto themselves in 2010 is not constitutional authority to continue the confiscation.
The advantages of federalism are enormous. States become laboratories of experimentation. States have the tendency to look at sister states for models and to borrow this from New Jersey and that from Oregon and yet something else from Alabama in refining their own programs. These places of experimentation work to everyone’s advantage. This process refines legislation and when enough states think it better handled at the federal level they, in a new constitutional amendment, can pass it to the federal partner. Citizens of a state not happy with experimental regulation can move to one of the 49 other states less controlling.
Had our “power crazed” federal partner refrained from their natural inclination to take over health care we could have gone through this experimental process designed by our Founding Fathers and been able to identify the weaknesses or strengths while they were still geographically isolated. Only three states had tried state health care: Oregon, Massachusetts, and Hawaii. That was clearly not enough to identify the “pitfalls” in the area. The federal partner took a half-baked idea and made it mandatory on the whole nation, thus it failed.
The Founders did not dare leave the vague phrase “general welfare” to future federal power grabbers. To prevent the interpretation that it meant “everything” they added clauses 2-9. Listed are 14 powers, five dealing with borrowing money, regulating its value and counterfeiting. The other nine included naturalization, bankruptcies, establishing post offices, protecting inventors and authors, establishing “tribunals inferior to the Supreme Court” and “regulating commerce with foreign nations and among the several states.” Health care, or anything remotely like unto it, is not listed.
Who decided the division of powers—the states? And they kept that right to decide in Article V of the Constitution. They forfeited only specific named powers that they could not reasonably do as states, as for example, a common currency. Why would they give any more power? They had just rejected the flow of power from the Colonies to Parliament and the resultant avalanche of rules descending from them in return. After all, the cause of the American Revolution was excessive government. Their intent was to handcuff the federal government so that such could never happen again, not give it free reign.
Constitutionalists must insist that Republicans and Democrats restrict themselves to the Constitution. Repeal, don’t replace, “Obamacare” or get a new amendment to it. Don’t damage the Constitution further by ignorance of it.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.