Advancing a Free Society

Federal-state tug of war on Constitution Day

Friday, September 17, 2010

Today marks the 223rd birthday of the signing of the U.S. Constitution, recognized as the oldest national constitution still in operation. If I were its physician, an annual checkup would conclude that, while still alive and kicking, the health of the Constitution faces several clear vulnerabilities.

Most notably, Washington has grown federal powers well beyond those listed or even contemplated in Article I of the Constitution, while state powers preserved by the 10th Amendment are in steady decline. In medical terms, the federal government is obese, while the states are starving. Many prominent court cases today - raising questions about health care, immigration and same-sex marriage - are fundamentally asking federal judges to referee a historic federal-state tug of war.

Take health care reform, for example, which was in federal court again this week. Health and welfare have long been considered the purview of states, but the health care reform legislation moved the federal government into the driver's seat. Constitutional challenges question Washington's power to do this on several grounds: Can the federal government create more unfunded mandates for states? Where does the federal government get the power to require states to change their Medicaid (Medi-Cal in California) laws? And most interesting, how can the federal government mandate the individual purchase of health insurance, either as a tax (which looks more like a penalty) or as interstate commerce (when it's really not commerce)?

Continue reading David Davenport in the San Francisco Chronicle