05/13/2011 06:55 pm ET Updated Jul 13, 2011

The Constitutionality of the Federal Health Care Law

A federal appeals court has just heard the first appeals from lower court decisions dealing with the constitutionality of the federal health care law (alternately called "Obama care" and the "Patient Protection and Affordable Care Act"). A Virginia judge and a Florida judge (both appointed by Republican Presidents) have decided that Congress lacks power under the Commerce Clause of the Constitution to pass the federal health care law. Three other federal trial judges (appointed by Democratic Presidents) had upheld the law. The Fourth Circuit Court of Appeals that just heard the case is composed of three appellate judges appointed by Democratic Presidents. The judges asked a number of questions generally supporting the government's position upholding the law. The Supreme Court will presumably have to settle the issue.

One immediate question arises about these cases: why can Massachusetts require all of its citizens to enroll in a health care plan, but there is some doubt whether the federal government can take the same action? The simplistic answer is that the states have unlimited power to pass legislation (subject, of course, to the restrictions of the Bill of Rights and their own constitutions). In holding the Obama health care law was unconstitutional, the two judges from Virginia and Florida that struck down the law held that the Constitution grants Congress, not all power to legislate (as the States have), but only limited powers specifically mentioned in the Constitution, and those powers must be narrowed construed.

Why should this distinction exist: states can pass any law they want, but Congress must
rely on specific enabling language in the Constitution that, according to those judges, must be as narrowly defined as possible? Why should there be strained and unrealistic limits on Congress' power to "regulate Commerce... among the several States," the broad language of the Constitutional provision? Isn't it important for Congress to be able to solve national problems that the States cannot adequately deal with?

The answer lies in history. The delegates who came to Philadelphia to draft the Constitution in 1787 recognized the troubles that existed under the then-current form of government, the Articles of Confederation. Governor Edmund Randolph of Virginia greeted the delegates with a list of problems that Articles had created: "He observed that the confederation fulfilled none of the objects for which it was framed. 1st. It does not provide against foreign invasions. 2dly. It does not secure harmony to the States. 3d. It is incapable of producing certain blessings to the States. 4. It cannot defend itself against encroachments. 5th. It is not superior to State constitutions."

The first and most important reason for a different form of government was "foreign invasion." Recalling the reluctance of the States to support George Washington's federal army, Randolph complained about the "Imbecility of the Confederation... conspicuous when called upon to support a war." He supplied the answer: "What reason to expect that the treasury will be better filled in future, or that money can be obtained under the present powers of Congress to support a war. Volunteers not to be depended on for such a purpose. Militia difficult to be collected and almost impossible to be kept in the field. Draughts stretch the strings of government too violently to be adopted. Nothing short of a regular military force will answer the end of war, and this only to be created and supported by money."

Thus the most important purpose of a new national government was to defend the people of the country against a foreign invasion, as well as to prevent uprisings in the States, such as Shay's Rebellion in 1786. (Randolph mentioned the need to prevent "seditions within themselves [the States] or combinations against each other.") Thus we needed a central government capable of enlisting its own army (as opposed to the state militias) and able to tax and raise enough money to support that army. Such a central government could also produce "certain blessings" for the people, according to Randolph. "Under this head may be considered the establishment of great national works--the improvement of inland navigation -- agriculture -- manufactures -- a freer intercourse among the citizens."

On the other hand, the delegates were concerned about a national government with a "standing army," that is, a permanent military force. Madison himself warned: "a standing military force with an overgrown Executive will not long be safe companions to liberty." Another leading statesman at the time, Charles Eliot, had noted: "what would be worse to a people who have tasted the sweets of liberty than a standing army." When the Constitution was finally drafted, six of the 18 enumerated powers in Article I, Section 8 dealt with control of the military.

The chief reason for creating a strong national government -- the organization and support of a military force to protect the country -- was also a source of danger. Thus the delegates wanted to limit the power of the national government so it could not use its military force to abridge their liberties. They granted it only those powers necessary to fulfill its mission of protection and to "produce certain blessings." They also wanted to insure that the state militias be independent and available to meet any attempt on encroachments by a federal army - the true purpose of the Second Amendment.

Is there now a danger of a federal army endangering our liberties? Is there any other reason to limit the powers of the national government to provide for the general welfare? We do have national elections every two years, just as the States do, as well as a vigorous federal judiciary ready and eager to enforce the Bill of Rights. The idea that the federal government should have fewer legislative powers than the states is based on nothing more than a perceived problem that existed 224 years ago and no longer has any force today.

Of course, Congress must rely on the specific words of the Constitution as a basis for any legislation, as the Republicans and the Tea Party insists. But those broad words -- "general welfare" "regulate commerce" -- must be read in accordance with the economic reality of our time, not the time in which the Constitution was ratified. The Supreme Court correctly expanded the reach of the Commerce Clause in the late 1930's in order to uphold many provisions of the New Deal in the 1930s to meet the problems of the great depression. The Court followed the words of Chief Justice John Marshall in McCullogh v. Maryland: "[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."

Today's federal courts should follow the same path and uphold legislation like the Obama health care law that correct problems having a serious impact on our nation's economy and do effect "Commerce... among the several states".

The ideologically-driven notion that we cannot let Congress pass laws unless we can link them to specific language in the Constitution that must be as narrowly defined as possible must be rejected.

Leon Friedman is a professor of Constitutional Law at Hofstra Law School.