Our firm has been approached by two clients seeking lobbying help on proposed legislation in the U.S. Senate guaranteeing health care for all minor children in the United States until they reach the age of majority. One client seeks to have the program run exclusively by the federal government, while the other prefers to have the program run by individual states with only limited oversight by the federal government. This memorandum discusses the legal issues surrounding each approach, and analyzes the strengths and weaknesses of each bill. This memorandum also discusses the likelihood of either bill being supported by the American people.
Health Care as a Federal Program
Senator Libby points to the General Welfare Clause of the U.S. Constitution as the constitutional basis for the legislation establishing a federal agency to guarantee that all minors have health care coverage. U.S. Const. art. I, § 8. The legal argument in favor of the bill is that it promotes the general welfare by making health care more available for minors, particularly those who would not otherwise be able to afford it. The clause gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises” to provide for the general welfare. Since Congress would presumably pay for expanding health care access to all minors by using tax revenue, the argument is that this in accordance with the clause.
It is obvious that guaranteeing health care coverage for all minors in the U.S. clearly promotes the general welfare. On a basic moral level, it is difficult to justify having minors go without necessary health care treatment and medical procedures simply because their parents lack the financial resources to pay for health insurance for their children. The lack of health care coverage for all minors has undoubtedly resulted in many unnecessary deaths. On a more utilitarian level, expanding health care coverage to children with their whole lives ahead of them is certainly a good investment for any society to make.
There is a long line of legal precedents giving the federal government the authority to create useful programs, even beyond those that are explicitly mentioned in the Constitution. The Necessary and Proper Clause of the Constitution gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const. art. I, § 8, cl. 18. In addition, the Supreme Court has held that the Constitution gives Congress the power to pass legislation not explicitly listed in Congress’s express powers, as long as the legislation is intended to further something that is one of Congress’s express powers. McCulloch v. Maryland, 17 U.S. 316 (1819). In this case, even though the Constitution does not expressly grant Congress the authority to mandate health care insurance for all minors, promoting the general welfare is one of the express powers of Congress. By guaranteeing health care coverage for all minors, Congress is exercising an implied power in order to implement an express power.
As a result of this doctrine, the courts have upheld many pieces of federal legislation, even in cases where there has only been a tenuous link between the legislation and constitutional provisions. For example, McCulloch upheld the authority of Congress to create a national bank, even though the power to create a national bank is found nowhere in the Constitution. This power is not limited to large scale actions such as creating a national bank or mandating heath care coverage for all minors either. The Supreme Court has also upheld federal laws prohibiting farmers from growing more wheat than was authorized under then existing production controls. Wickard v. Filburn, 317 U.S. 111 (1942). In that case, the court held that the farmer’s production of excess wheat affected interstate commerce. Since the power to regulate interstate commerce is one of the express powers of Congress, it has the power to exercise this authority by any means necessary.
Health Care for Minors Run By the States
By contrast, Senator Conway argues that all laws passed by Congress must be made “in Pursuance” of the Constitution. U.S. Const. art. VI, cl. 2. Since no provision of the Constitution requires the purchase of health insurance, he argues that such a law is therefore not in pursuance of the Constitution. Senator Conway also points to the 10th Amendment, which states 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.” U.S. Const. amend. X. Since providing health care is not a power delegated to the federal government under the Constitution, it should be reserved to the states instead.
As pointed out above, it is true that the Supreme Court has historically upheld the broad exercise of federal power. This trend has especially been the case since the New Deal era. However, several cases in recent years have signaled that the Supreme Court may be willing to strike down acts of Congress as exceeding Congress’s authority under the Commerce Clause for the first time in decades. In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court struck down a federal law prohibiting the possession of handguns on school property. In that case, the Supreme Court rejected the argument that the possession of guns on school property was a matter that affected interstate commerce. Accepting this argument, the Court felt, would lead to a slippery slope that would allow Congress to regulate virtually any activity regardless of how remote its connection was to interstate commerce.
The Supreme Court also struck down a federal law that gave victims of violence based on their gender the right to sue their attacker in federal court. United States v. Morrison, 529 U.S. 598 (2000). Likewise in that case, the court rejected the argument that violence against women somehow affected interstate commerce. It is worth pointing out that in both Lopez and Morrison, the Supreme Court did not express approval of either guns in schools or violence against women. Instead, the Court held that these actions that are meant to be handled in state court, rather than being handled on the federal level.
At the same time, Congress is certainly within its powers to establish financial incentives to encourage states to create their own mandatory health care insurance programs for minors. The Supreme Court has upheld a federal law withholding federal money from states that had a minimum drinking age lower than 21. South Dakota v. Dole, 483 U.S. 203 (1987). In that case, the Supreme Court held that withholding spending from states is simply a “pressure” on states, rather than a “compulsion.” The court did seem to indicate that a federal law mandating a national drinking age might be unconstitutional as federal interference in a state matter, but held that merely creating incentives for states to comply is constitutional.
Analysis and Conclusion
To summarize, the preferred legislation of Senator Conway’s that would create federal incentives for states to create their own mandatory insurance programs for minors would almost certainly withstand court challenge. There is no prohibition against Congress encouraging states to create policies that it favors. Senator Libby’s preferred legislation that would create a federal agency to guarantee health care coverage for all minors would likely withstand court challenge as well, given the decades of precedent in favor of a broad interpretation of the Necessary and Proper Clause. However, there is at least a small possibility of the law being struck down given recent court rulings.
Putting aside legal arguments for a minute, as you requested, it seems likely that Senator Libby’s approach of a federal mandate would probably be more effective. Senator Conway’s plan that would encourage states to mandate health care coverage for minors sounds enticing, and it would likely be more popular with the American people than the federal plan. Americans are naturally skeptical of claims of broad federal power. However, it is not at all clear that “encouraging” states would be enough to persuade them to mandate health care coverage for minors. Children lacking health insurance are likely to come from the poorest, least politically powerful members of society. Senator Conway’s suggestion that states failing to provide health insurance for minors would fall behind economically and cause citizens to demand action is not convincing. Many state legislators and citizens define “economic success” in narrow terms – namely by controlling state spending and avoiding budget deficits. Would people who already have health insurance willingly agree to extra state spending to insure those lacking it?
Reference List
McCulloch v. Maryland, 17 U.S. 316 (1819)
U.S. Const. art. I, § 8
U.S. Const. art. I, § 8, cl. 18
U.S. Const. art. VI, cl. 2.
U.S. Const. amend. X
United States v. Lopez, 514 U.S. 549 (1995)
United States v. Morrison, 529 U.S. 598 (2000)
Wickard v. Filburn, 317 U.S. 111 (1942)