Lately, the web has been all atwitter with questions about the constitutionality of health reform. And why not? Surely the Founders of this great country did not intend for the government to go mucking about with health care delivery. Dammit, they intended America to look much more like this. Or this. Or this.
But all of that aside, it's not entirely clear there was ever a Constitutional problem with health reform until it's opponents woke up one day and declared, "I'd sure like to see some Constitutional problems with health reform." And lo, they did, because the Constitution is a bit unclear on certain points and barely anyone ever bothers to check, and when you look at it facts are actually kinda fungible and confirmation bias is a wonderful thing. And presto! A constitutional problem with health reform.
We blame this on the entirely unclear tenth amendment to the Constitution of the United States1. Catchy? Of course. Clear as crystal? Hell yes. Point proven? Do not make us laugh.
There are two problems with this tenth-amendment-specifically-mud-wrestles-health-reform-into-submission theory. First, it's pretty clear that the Tenth Amendment was written in much the same spirit as a husband promises to mow the lawn next weekend. It's not meant to do anything. It's just there to reassure people.
Doubt us? You poor fool. The Supreme Court has largely held that the Tenth Amendment is a truism - an amendment that restates powers already granted in the Constitution. In fact, only twice over twenty years or so have laws fallen afoul of Amendment X, in both cases for fairly esoteric reasons involving states enforcing federal mandates.
And that's the problem with the Tenth Amendment - the powers already granted to the federal government are really, really large. They include the powers to regulate interstate commerce and the sweeping clause. They involve powers vast enough to create taxation, treaties, prisons, the FBI, the CIA, the NSA, wars, welfare, the Pentagon, the Army, Navy, and Air Force, Medicare, Medicaid, Social Security, national debt, housing subsidies, farm subsidies, and the Federal Reserve. Yet you think the powers-that-be are going to balk at an incremental, budget reducing reform that affects a measly 4% of U.S. health care spending?
It's pretty fucking doubtful. Social Security and Medicare acquire a hell of a lot more money from your paycheck and the federal government doesn't generally ask for permission.
But then, to paraphrase Brad DeLong, we do have four certifiably crazy judges on the Supreme Court. You never can tell with these things.
1"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
