Could the States Nullify a Public Option?

Apparently, that’s a theory brewing on the right wing right now, but we’ve already debunked the Tenth Amendment “argument” as the dreck it is. Not only is nullification an ugly word in American legal history, but as applied to the public option, it has troubling implications. If a public option violated the Tenth Amendment, Medicare probably would too, and good luck getting re-elected on that platform.

The more responsible version of the “can states nullify the public option?” question is, “could states litigate its constitutionality?” This question has the decided advantage of not relying on a constitutional dead letter, and not provoking a constitutional crisis. But it’s still probably flawed. For one, a finding of any “public option” plan’s unconstitutionality would go sharply against precedent. If the public option were found constitutionally lacking, it would almost surely be for its failure to come within the meaning of the Commerce Clause. But as we’ve covered before, the Commerce Clause is quite expansive and, indeed, was probably intended that way. Recall that the federal Constitution was written to solve the deficiencies of the Articles of Confederation, first and foremost of which was — you got it! — the lack of any congressional power to regulate commerce or the “general welfare.”

Our Constitution has both, and both have been construed to support a plan of the size and style of the public option: Social Security. At an admittedly high level of generality, Social Security — which relies on a massive bureaucracy, and taxes and spends to induce employers to care for their workers — looks a lot like a public option, which would create a similarly large bureaucracy, for the purpose of aggregating resources for disbursement to needy citizens. Further, the problem posed by the under-protection of employees is roughly similar to the problem posed by the under-insurance of American citizens. At least, it looks the same from a Commerce Clause perspective, in that it’s not true “commerce,” but has grave implications on true commerce, creating externalities which spill across state lines. This problem was held regulable in Steward Machine Co. v. Davis, 301 U.S. 548 (1937), by minds of no lesser brilliance than Brandeis & Cardozo. Nor did Rehnquist’s “federalist” counter-revolution roll back Steward Machine. In modern terms, Social Security, Medicare, and a theoretical public option are all closer to Raich than Lopez or Morrison.

But, it’s cute to see conservatives turn to the courts when they feel like they’re losing in the political branches. And here I thought only an “activist” court would overturn congressional enactments?

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