Rule of Law

Constitutional Fairy Tales and the Affordable Care Act

Opponents of the Affordable Care Act routinely spin a tea-party-infused tale about how our nation’s founding was all about limiting government. This story is sure to support the legal briefs challenging the constitutionality of the act’s minimum coverage provision, which state officials are due to file Monday in the Supreme Court.

But would George Washington and his fellow founders really be aghast at the individual mandate? Would Alexander Hamilton or James Madison truly have a problem with ensuring that Americans with pre-existing conditions have access to quality affordable health care?

The Federalist Papers, letters, records of debates and many more original sources provide insight into the views of Washington, Hamilton and other founders about the scope of federal power under the Constitution they helped write. These sources show that, unlike the constitutional tale told by Affordable Care Act opponents, the Founding Fathers were keenly attuned to the need to create a federal government capable of providing national solutions to national problems.

While the act’s opponents predict “dire” consequences to our system of federalism if health care reform is upheld, the legislation actually fits comfortably into our constitutional framework.

The current nationwide health care crisis, which involves close to 20 percent of the U.S. economy, is exactly the sort of problem the founders would have wanted the federal government to solve under the powers given to Congress by the Constitution. The Affordable Care Act addresses issues of national concern — involving the states as partners but offering federal mechanisms of reform where necessary.

Our Constitution was drafted in 1787 “in order to form a more perfect Union” — more perfect than the dysfunctional Articles of Confederation, which Americans had lived under for a decade since declaring independence. Washington and the other delegates to the Constitutional Convention shared a conviction that the founding document must establish a national government of substantial power — in contrast to the extremely weak central government created by the Articles.

In 1783, soon after the Revolutionary War was won, Washington wrote to Hamilton, “unless Congress have powers competent to all general purposes, that the distresses we have encountered, the expences we have incurred, and the blood we have spilt in the course of an eight years’ war, will avail us nothing.”

Washington elaborated on this in a 1783 circular to the states. A sufficiently energetic national government was necessary, he wrote “to regulate and govern the general concerns of the Confederated Republic, without which the union cannot be of long duration.”

The result was our Constitution’s vibrant federalism — giving broad power to the federal government to act in circumstances in which a national approach is necessary or preferable, while reserving a significant role for the states to craft innovative policy solutions reflecting the nation’s diversity.

Of course, as Madison noted in Federalist 45, the federal government’s specific powers under the Constitution are “few and defined,” while the powers “which are to remain in the State governments are numerous and indefinite.” But while the grants of federal power may be “few and defined,” where such authority is given — it is substantial.

For example, from these few enumerated powers come the ability to regulate interstate commerce and to tax and spend for the general welfare. Add to that the grant of constitutional authority to pass laws “necessary and proper” to carrying out these “few and defined” powers, and the Constitution’s enumerated powers add up to the energetic federal government our founders thought was necessary to govern the United States.

The Affordable Care Act respects this constitutional balance of power by providing federal mechanisms for achieving national health care reform — including the minimum coverage provision and expanded Medicaid coverage. But it also maintains the states’ ability to shape key reform measures that do not need to be uniform, to achieve the act’s legitimate goals.

Obviously, health care at the time of the founding was worlds away from the nearly 20 percent of our economy that it is now. And who really knows whether Madison would have thought the Affordable Care Act was good policy.

But that is beside the point. Our Constitution’s enduring text establishes a federal government strong enough to act when the national interest requires a national solution. The idea that the federal government does not have the power to address a national problem — like the current health care crisis — is a tea party fairy tale with no basis in the Constitution’s text and history.

Elizabeth Wydra is chief counsel of the Constitutional Accountability Center.