Does Federalism Still Work? (2 cents)

One of the most controversial provisions of the new health care legislation is the law’s requirement that individuals obtain health insurance, or be liable for a fine. The argument against the constitutionality of this provision is that it is not permitted under the commerce clause of the Constitution which only enables the federal government to regulate commerce that is interstate. The questions regarding health insurance is (a) whether it is commerce, since it does not involve a product and (b) whether, if it is commerce, it is interstate commerce.

Without knowing what the courts, and eventually the Supreme Court, will do (or whether they will reach their decisions politically more than textually), it seems clear to me that health insurance crosses state lines (the example I use is the Connecticut resident who works in Manhattan, uses an insurance broker in New Jersey, spends half his time in Florida and is injured in Montana), and that commerce includes the acquisition of services.

Along with this, however, is my belief that leaving the regulation of health insurance exclusively to the states won’t work. Just like I don’t think that gun ownership regulation left to the states won’t work (gun supporters point to DC, saying “tough gun laws” and considerable “gun violence”, without taking into account that the guns used in DC crime are not bought in the District, but in Virginia and other close by states).

Just yesterday, I was listening to an NPR program talking about the electric grid, which is composed of the electric power delivery systems of hundreds of separate utilities, how difficult it is to coordinate them, and how dependent they (and therefore we) are on their working together smoothly. And think how hard it would be to convert our personal transport system across fifty states to one based on electric automobiles. Or how about high speed trains?

So much has been written about the complications and benefits of globalization, and its inevitability, but little is written about the “Americanization” (if that’s the right word) of commerce in the United States. Under the U.S. constitution, the powers not enumerated for the federal government are reserved to the states – we have a bottom up government. But, in the 21st century, a bottom up government may not work, and may be one of the reasons why we seem to be behind so many other countries in the provision of health insurance, the maintenance of our
infrastructure, and all the rest.

It may be that a bottom up, federalist structure no longer works. To change this, of course, would probably require a constitutional convention. And, considering that any such a change would have so many interest groups allied against it, the likelihood of success is virtually nil (perhaps virtually is too equivocal).

But isn’t it time to start the conversation?


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