Federalism is no bar to health care reform

Federalism serves as the latest rallying cry for critics of health care reform. The foes of current legislative proposals charge that Congress is overstepping its bounds and infringing on the prerogatives of the states.

The critics are right that federalism, the allocation of authority among the states and the national government, remains a fundamental principle of our constitutional system. But it is the advocates of reform, not their opponents, who are the true standard bearers of federalism. The health care plans build on the interaction of state and federal power that is central to federalism.

Critics of health care reform brandish federalism as a weapon to undermine democracy, to invite judges to control policy debates. But contrary to their claims, federalism serves to empower citizens, not judges.

The current target of faux federalists is the “individual mandate,” the requirement that all Americans buy health insurance unless they cannot afford it. Friends and foes of health care legislation agree that the mandate is essential to all serious reform proposals. Currently, individuals can avoid paying health care premiums, secure in the knowledge that hospitals — and ultimately the citizens who do buy insurance — will be on the hook for expensive emergency procedures. In this way, taxpayers already provide insurance for people who could, but do not, pay the premiums.

Small groups of state lawmakers around the country are pressing for state constitutional amendments to prevent the mandate from applying within their states. These opponents seek a showdown in court.

Whatever one thinks of the wisdom of the individual mandate, or of health care reform generally, it would be surprising if the Constitution prohibited a democratic resolution of the issue. Happily, it does not.

Constitutional doctrine clearly gives Congress the authority to decide whether to enact the mandate. Congress has the power to regulate interstate commerce, which includes buying and selling insurance. In the Raich case in 2005, the U.S. Supreme Court clarified the scope of the commerce power and reaffirmed the core principle that dissident states cannot thwart national policy.

Raich concerned a California program that legalized the use of marijuana for medical purposes. The California plan clashed with a federal law that criminalized private possession. In Raich, the court upheld the congressional ban by a vote of 6-3.

Even Justice Antonin Scalia, no fan of expansive claims of federal power, voted to affirm Congress’ authority. Justice Scalia explained, “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

The court recognized that an effective national system of drug control required a comprehensive program that reached into all the states. Nor could California secede from the national plan. The country experimented with secession once, and it did not go well.

The point is not whether it is good policy to ban the private use of marijuana for medical purposes. The question is whether the courts allow the people’s representatives in Congress to make that judgment.

The parallels to health care reform are striking. National regulation of health insurance clearly falls within congressional authority. Therefore, so do necessary local elements of the plan. Indeed, requiring someone to purchase insurance falls much closer to the economic core of the commerce power than prohibiting marijuana use.

Even if current law does permit a mandate, though, one might ask whether it should. Did Justice Scalia’s reasoning in Raich somehow pervert federalism?

What the critics’ narrow arguments miss is the power of federalism illustrated by the health care reform efforts. Federalism promotes liberty and innovation by fostering a dialogue among local and national bodies, rather than by inviting courts to draw lines between them.

Massachusetts served as a laboratory with its own attempt to offer comprehensive health care, including an individual mandate. The federal government has learned from that experience. Moreover, the states will play an important role in implementing any national health care system.

What then should we make of state constitutional amendments purporting to bar a federal individual mandate? Such amendments show the value of federalism. State legislatures provide vital platforms for dissenting voices. Such amendments cannot block federal law. But the main point of federalism is to inform public debate, not to invite a court to terminate democratic dialogue.

The health care controversy demonstrates the continuing significance of federalism. Contrary to those impugning the constitutionality of mandates, though, it is a federalism of the people, by the people and for the people, not a federalism of the courts.

Robert Schapiro is a professor of law at Emory University School of Law and the author of “Polyphonic Federalism: Toward the Protection of Fundamental Rights.”