JURIST Guest Columnist Steven D. Schwinn of the John Marshall Law School in Chicago says that the Eleventh Circuit ignored the text, history and jurisprudence of the Constitution in its recent health care ruling, which will likely not be adopted by the Supreme Court given recent rulings on congressional Commerce Clause authority…

Some will go to any length, it seems, to read their activist views into our Constitution. If an idiosyncratic view is not supported by the text, they search for it in our history. If it is not supported by text or history, they turn to novel interpretations of precedent. And if it is not supported by text, history or precedent, they seem perfectly willing to weave it out of whole cloth.

Such was the evolution of a radical federalist theory that found its way into the Eleventh Circuit ruling last month finding that the individual health insurance mandate in the Affordable Care Act exceeded Congress’s authority under the Commerce Clause. The court found that both insurance and health care are matters of traditional state concern, and Congress therefore could not regulate it. This finding is surprising because Congress already heavily regulates insurance and health care through ERISA, COBRA, HIPAA and the ubiquitous and gargantuan Medicare and Medicaid programs. In the opinion, the court relied on self-defined “principles of federalism.”

This approach has no support in the text, history or even a proper understanding of the jurisprudence of the Constitution. Those sources emphatically do not say that Congress cannot regulate in areas of traditional state concern; if anything, they say the opposite. The court recognized this and wisely avoided any serious consideration of these sources. Without strong support, the court then unwisely wove its novel principles of federalism out of whole cloth.

Start with the text. Nothing in the original Constitution supports the theory that Congress cannot regulate in areas of traditional state concern. The two important exceptions, which address slavery, do not provide support for the court’s principle of federalism today. In fact, the plain text of the original Constitution says the opposite. Under Article I, Section 8, Congress has plenary authority “[t]o make all Laws which shall be necessary and proper” to “regulate commerce … among the several States,” without regard to whether such laws or regulations touch on areas of traditional state concern. Moreover, several clauses throughout the text specifically restrict the states, suggesting that there is nothing sacrosanct about areas of traditional state concern. For example, Article I, Section 10 contains a list of restrictions on state action; Article IV, Sections 1 and 2 similarly contain restrictions on states. This is all punctuated, of course, by the Supremacy Clause in Article VI, which specifically contemplates an overlap between federal and state law in which federal law will prevail, and this article’s Oath of Office Clause, which requires state officers to swear to support the Constitution.

Later amendments restrict state sovereignty to an even greater degree and thus undercut the theory that the Constitution protects areas of traditional state concern. The Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments prohibit states from violating various civil rights and authorize Congress to adopt legislation to protect these rights against state interference. The Sixteenth Amendment authorizes Congress to lay and collect an income tax “without apportionment among the several States.” And the Seventeenth Amendment provides for the direct election of US Senators, ending their appointment by the state legislatures. The Tenth Amendment, the state-righters’ perennial favorite, only provides that those “powers not delegated to the United States … are reserved to the States respectively, or to the people.” This says nothing about areas of traditional state concern or the extent of federal powers; it is merely a truism in a federal system like ours. Thus, the text and structure do not restrict congressional action based on areas of traditional state concern.

Next consider the history. The best evidence suggests that the framers did not believe that the Constitution protected areas of traditional state concern. This is perhaps most clearly illustrated by the framers’ rejection of anything like Article II in the Articles of Confederation. That article, a true state sovereignty protection, read: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The framers rejected Article II in drafting the Constitution, which, among other defects in the Articles of Confederation, gave rise to a great deal of problems in our earliest government. The closest thing we now have to Article II is the Tenth Amendment. The Tenth Amendment, however, omits any reference to state sovereignty, excludes the word “expressly,” and includes the phrase “or to the people” — three differences that make the Tenth Amendment a mere shadow, at most, of the earlier Article II. The framers made these changes to the Tenth Amendment deliberately, in order to ensure that congressional power remained flexible and adaptable, and to reflect the ultimate sovereignty of the people.

Moreover, the Constitutional Convention debates suggest that the framers did not understand the Constitution to protect areas of traditional state concern. In fact, the convention rejected several proposals to protect state authority. For example, the convention decisively rejected Roger Sherman’s proposal to exclude from federal power “matters of internal police which respect the Government of such States only, and wherein the welfare of the United States is not concerned.” The convention did not even take up a suggestion by Rufus King that the Constitution expressly protect the “[r]ights of the States in the National Constitution.” Later congressional debates over the proposed Tenth Amendment support this. For example, Congress rejected a more robust alternative — one that would have “reserved to the States” “all powers not expressly delegated to the United States,” reflecting the language in Article II of the Articles and restricting congressional authority in relation to the states. Instead, Congress added the phrase “or to the people,” underscoring the “popular sovereignty” idea that all power resides first in the people, and that government enjoys power only by their delegation.

James Madison said this in a different way in Federalist 44. Madison wrote that the Necessary and Proper Clause necessarily granted flexible and undefined powers to Congress in order to actuate its enumerated powers in Article I, Section 8 to meet the demands of new and changing times. He wrote that a specific enumeration of powers was impracticable, because it would have to have been “accommodated too not only to the existing state of things, but to all the possible changes which futurity may product; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remain the same.” Although Madison’s Federalist 45 is a perennial favorite of state-righters, he recognized that federal power must change with the times, potentially running into areas of traditional state concern, and, of course, that federal law is supreme. In Federalist 46 he recognized that protection of the states is best left to political forces. The Constitution does not shield states from federal regulation.

Finally, consider the jurisprudence. The Supreme Court’s latest foray into federalism came in United States v. Comstock, upholding a federal law that allowed the district courts to order the civil commitment of a “sexually dangerous” federal prisoner even beyond his release date. In that case, five justices, including Chief Justice John Roberts, flatly rejected the respondents’ argument that the federal law violated the Tenth Amendment because it regulated too far into an area of traditional state concern. Two other justices, Justices Anthony Kennedy and Samuel Alito, declined to go so far on the federalism questions, but they nevertheless concurred in the result.

The ruling in Comstock is consistent with the previous significant ruling on federal power and areas of traditional state concern, Gonzales v. Raich. The Court in that case also flatly rejected the argument that the federal law, the Controlled Substances Act, regulated too far into an area of traditional state concern. Notably, Justice Antonin Scalia, no friend of expansive federal power, wrote in concurrence that “neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation ‘inappropriate,’ except to argue that the CSA regulates an area typically left to state regulation. That is not enough to render federal regulation an inappropriate means.” (Emphasis added)

To be sure, the Court in United States v. Morrison and United States v. Lopez wrote that this federalism principle — that Congress cannot interfere too greatly in areas of traditional state concern — was a consideration in the Court’s Commerce Clause analysis. But these cases went against the jurisprudence going back to Garcia v. San Antonio Metropolitan Transit Authority that said that the Court could not identify “principled constitutional limitations on the scope of Congress’ Commerce Clause powers over the States merely by relying on a priori definitions of state sovereignty.” Since Garcia, “[s]tate sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”

Between the earlier Garcia and the later Raich and Comstock decisions, the principle of federalism outlined in Morrison and Lopez look more like an erratic blip on the screen than a durable constitutional doctrine. Yet the Eleventh Circuit elevated it to a virtual element of its Commerce Clause analysis — a far more significant consideration than it was in even Morrison and Lopez. It did this by ignoring the text, history and jurisprudence of the Constitution.

This was a serious mistake. If adopted by the Supreme Court, it could jeopardize the federalism balance that has been carefully maintained. Thankfully, if the Court’s most recent cases reflect a trend, the Supreme Court is unlikely to go along with this novel, activist approach. Instead, the Court will return to a view of federal-state relations that more accurately reflects constitutional values.

Steven Schwinn is an associate professor of law at The John Marshall Law School in Chicago. He teaches and writes on constitutional law, comparative constitutional law, and human rights. He was previously assistant general counsel for the Peace Corps. Schwinn also maintains a website dedicated to constitutional law.

Suggested citation: Steven D. Schwinn, Health Care in the Eleventh Circuit: A Doomed Concept of Federalism, JURIST – Forum, September 18, 2011, http://jurist.org/forum/2011/09/steven-schwinn-eleventh-circuit-federalism.php.