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Aug 13, 2018 49 tweets 11 min read Twitter logo Read on Twitter

I made mention awhile back that I held constitutional objections to the Medicare For All proposals that periodically come up. It's a complex topic, so it took me a couple weeks to put this together into a (hopefully) coherent argument, but at last, here it is. #m4a
The wide range of concerns around Medicare For All has resulted in these being pretty muddy waters, so for the sake of holding a focused discussion, let's just assume that, with the exception of constitutionality, all other concerns have been satisfactorily assuaged.
In other words, I don't want to get sidetracked by whether or not M4A would cause stagnation in medical advancements, lower incentives to enter the field, suffer from too many bureaucratic inefficiencies, etc.

Let's just assume that, if implemented, it's a guaranteed success.
So to get things going, let's quickly define Medicare For All. For this discussion, I'm assuming that we generally mean:

• A federal-level program
• with Single Payer funding
• offering universal access to health services (preventative, promotive, rehabilitative, palliative)
Let's begin our assessment of the constitutionality of such a program by taking a look at the constitutional defense that has been proffered by its proponents.

It needs to be said up front that this relies on nigh on a century of jurisprudence, so this will be highly abridged.
M4A proponents rely on 3 primary constitutional clauses:

1. The general welfare clause
2. The necessary and proper clause
3. The commerce clause

The 1st and 2nd provide a general context for pursuing such a program, while the 3rd is where specific authority is derived.
So, let's start with the general welfare clause (included below).

Admittedly, a casual reading lends itself rather willingly to the interpretation that a broad range of powers are being granted here. After all, "general welfare" seems to cast a rather wide net, does it not?
Next, we have the necessary and proper clause.

Here, we don't specifically see an expansion in the scope of congressional powers, so much as an explicit declaration that Congress has the ability to legislate in pursuit of the execution of its other granted powers.
Alright, let's hit pause and address these two clauses before continuing to the commerce clause - it's a beast of its own, and if you've never spent much time digging into the history of how it's been historically employed, be prepared to flip a table or two when we get there.
OK, given the above two clauses, you can begin to form a rudimentary defense:

- We've got this proposal, and by any objective measure, M4A is for the "general welfare".
- And we have the power to legislate the execution thereof.

It's rough, but it also kind of adds up, right?
If you're already familiar to these parts, you may be wanting to stop me right here for setting up a straw man argument.

As outlined above, this is a horribly insufficient defense, and no legal authorities are actually employing it. But keep reading...
Given the aforementioned, I debated whether to actually address this argument, but I'm leaving it in for two reasons:

1. It's still relatively popular among armchair pundits, so it's worth dispelling.
2. It lays some nice groundwork before we hit the commerce clause.
As we begin this critique, forgive me for indulging in a mini-soapbox issue for me:

There are times where the Constitution admittedly seems open to multiple interpretations, and in those cases, it's incumbent on us to suss out its original intent as faithfully as possible.
This isn't always a trivial task, but I do have good news:

Friends, we did NOT receive the Constitution from aliens.

We did NOT find it in a sarcophagus.

We got it from 18th century humans, and it turns out they wrote a LOT of secondary sources that speak to these ambiguities.
To be clear, I'm not saying that these secondary sources should be treated as though they were as authoritative as the Constitution itself (they're not), but I AM saying that when it comes to honing our interpretations, literally everything else is worse.

Ok, /soapbox.
So let's revisit the general welfare clause, and see what James Madison had to say about its purported granting of vaguely broad powers relating to the "general welfare" of the country:
In case you missed it, that was one of the principal authors of the Constitution SHAMING some objectors for suggesting that this clause could POSSIBLY be interpreted to grant non-enumerated powers on the basis that they were somehow necessary for the general welfare.
There are droves of similar sentiments expressed around this clause, btw, but I'm going to try to be selective, considering our medium.

So, suffice it to say, the general welfare clause isn't actually the "do whatever the heck you want, so long as it seems good clause".
The necessary and proper clause is a bit trickier, because it tends to split us into polar opposite groups:

1. Those who believe it is a redundancy and offers absolutely NO powers.
2. Those who view it as an "elastic clause", and therefore as one of the MOST powerful of all.
To do that debate justice would require far more time than I'm going to dedicate in this thread, but I'll at least state that I find that the "elastic" group relies far too heavily on citing past abuses, and far too little on sound constitutional hermeneutics.
Anyway, to briefly argue in favor of the "no power whatsoever" interpretation, I'll lead with another quote from The Federalist Papers, this time by Hamilton.

TL;DR: the addition of this clause, to Hamilton, would produce a government that operated identically to one without it.
This same point was in fact reiterated during the ratification debates, during which George Nicholas suggested that this wording was semantically equivalent to appending the same assertion to each of the explicitly enumerated powers that followed it:
Well, I've hit that sweet spot of "too long for Twitter" and "too brief for such a complex topic", so let's call it good on that point. 🙃

But just to put a ribbon on that: these 2 clauses don't grant new domains of power, they only modify the enumerated powers that follow them.
Now, on to the commerce clause.

I can already feel my horns growing on this one, but just read it for yourself while I take a quick Sama-Vritti break:
*inhales slowly*



*exhales slowly*



Ok, let's continue.
I'll just say it: I've grown to really dislike the commerce clause.

It's not that I dislike or disagree with anything it actually says, mind you. It's more the kind of dislike that one might feel for baseball bats after spending too much time with Negan.
Having just read it, you may be asking yourself just how bad it could really be.

Bad. Let's start with the sad story of Mr. Filburn, a farmer operating in 1940's Ohio. His troubles began when he ran afoul of the Department of Agriculture for farming too many acres of wheat.
In fighting the resulting fine, Mr. Filburn argued that:

• He actually HAD followed regulations for how much acreage he could farm *for commerce*.
• The excess acreage was for personal use.
• How much wheat he grew for himself was none of the government's gosh dern business.
Being the reasonable person you are, you might be thinking that—assuming he was giving an honest description of his operation—that was a pretty fair defense.

Yeah, about that:
When the case made it to the Supreme Court in Wicker v. Filburn, the fine was upheld on the basis that by having grown the extra wheat, he was theoretically offsetting what he might have otherwise purchased across state lines, and therefore it was fair grounds for regulation.
This is so stupid it bears repeating:

• Filburn grew wheat for himself.
• This act affected a HYPOTHETICAL alternative course of action involving interstate commerce.
• Ergo, the commerce clause enables the government to restrict how much wheat you grow for personal use.
In addition to abuses like the above, the commerce clause has provided authority for all manner of overreaching regulatory action, including ones that seem rather innocuous.

For example, the commerce clause underpins the Clean Water Act, which superficially seems hard to oppose.
While initially restricted to bodies of water that were navigable for interstate commerce, subsequent amendments have eroded that restriction, producing increasingly vague and intrusive regulatory reach, up to and including rain water on private property.
In the interest of (some semblance of) brevity, I'll leave specific examples here as an exercise for the reader.

But allow me to pose this: having just read the commerce clause, do you think its authors ever intended it to extend to your backyard rain collection activities?
For one more example, which we'll also leverage as a segue back to Medicare For All, let's look at how the Commerce Clause was used to uphold the Individual Mandate portion of the ACA (aka "Obamacare").
Perhaps you'll recall that one of the principle objections to the Individual Mandate was that it constituted a punitive tax on non-participation (or "inactivity") in a private market.

Chief Justice Roberts summarized the problem nicely in his opinion on the court ruling, here:
And as you may also recall, that the 5-4 ruling rejected this argument, on the grounds that the tax was sufficiently small so as to not exceed some (as of yet undefined) threshold at which point it might THEN be considered unconstitutionally punitive.
In other words, the same government that blocked interstate competition for decades created their own interstate insurance market, giving authority under the commerce clause to punitively tax non-participation.

I've actually sustained an uninterrupted internal scream ever since.
Not dumb enough for you yet? One of the other availing arguments in that farce of a decision was that the consumer still retained some choice in the matter, as there are multiple plans to choose from.

Yeah, except the choice not to act, you imbeciles.

*more internal screaming*
Ok, let's finally tie this all back to Medicare For All.

We should start by noting that:

• being funded through a Single Payer model, and
• not relying on a punitive tax for inactivity in a private market

...M4A avoids many of the objections that plagued the ACA.
And, given that we've dodged the issues that I just mentioned, why can't Congress just:

• leverage its powers under the necessary and proper clause to enact M4A, and
• leverage its powers under the general welfare clause to fund it through tax revenue?
Well, that's why we just had this absurdly long thread:

Neither the general welfare clause nor the necessary and proper clause grant ANY domains of power. They define WAYS in which Congress can act, but they're still restricted to the subsequent, enumerated realms of concern.
Because none of the enumerated realms of concern even REMOTELY resemble Medicare For All, its proponents must rely exclusively on the commerce clause for authority.

And as we've seen, the commerce clause is a sneaky bastard with decade after decade of encroaching misapplication.
Even proponents of Medicare For All—and big government in general—should be able to read the commerce clause and make an honest concession that its authors never intended it to be wielded in the ways that we have observed.
When the constitutional validity of a program relies on a century of increasingly dubious jurisprudence around regulating interstate commerce, we have reason to hit pause.

When that program would constitute the largest single expenditure of the federal government, start over.
I find the mode of argumentation around the commerce clause be telling, as well:

• On the one side, we uphold a natural reading of the clause itself.
• On the other side, you have justifications for scope creep based on previous controversial rulings in 1937, 1941, 1995, etc.
And as I previously stated, we needn't be shy of gleaning added insight from secondary sources written by the very same authors. Here's one of my favorite quotes from Madison, in defense of strong, sovereign states, and a principally externally-focused federal government:
In closing, I'd like to leave you with a more contemporary quote, and one that I find speaks beautifully to the wisdom of the Constitution, and the dangers of making an end run around it in pursuit of even well-intentioned goals:
(hooray, you made it!)

This was, once again, quite long, but thank you for taking the time to read it. I realize that this topic is exceedingly complex, and there's room for multiple views on these things. I just hope that this was a passable expression of one of them. 🤗

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