As a conservative feminist, my voice gets lost in the shuffle. In the debate around the Affordable Care Act, it is much more titillating to focus on Rush Limbaugh’s use of the word “slut” than it is to focus on those others of us who oppose the legislation because we find it to be an invalid overreach of federal power.
No one really seems interested in the tension between our current structure as a de-centralized federalist Republic and the federal expansion that would result should the Supreme Court rule in favor of the Act this June.
Full disclosure: I probably wouldn’t be very interested either, were it not for my legal education and my growing frustration with being marginalized by both political parties. Maybe (hopefully) if I can explain my own opposition to the Act, I can give a voice to some of us feminist Republicans who are consistently ignored by the rhetoric of our own party, the opposing party and the media at large.
I was going to save this for the very end as a sort of “grand reveal,” but maybe I ought to just tell you my opinion right up front: I don’t think that the Affordable Care Act is constitutional. Shocker, right? But more than that, I don’t think that the debate we are currently having (on this site and in public discourse as a whole) is the debate that needs to be had.
Let me clarify: In order to pass a bill, Congress must have both reason and authority to do so. Our healthcare system is in crisis -- I think we can all agree that the “reason” part of the “reason and authority” requirement is met in this case.
However, just because Congress has reason to act, it does not necessarily follow that it has the authority. It is the “authority” portion of the “reason and authority” requirement that I, and others like me, take issue with here. And it’s the “authority” portion that keeps getting ignored in favor of endless debates on whether or not the Act is “good,” or “right,” or “fair,” or whether or not Republicans hate women.
(I’m a woman and I don’t hate myself, for the record. At least, most days.)
When the Supreme Court hears oral arguments later this month, the government will primarily rely on two main cases as their proof of the authority of Congress to pass legislation such as this one. If you understand these two cases, you understand more about the constitutionality of the Affordable Care Act than does most of the country. And they’re good stories, I promise! (OK, they’re not that good. But they’re important, and they’re about real people, so they’re not completely boring.)
The first of these two cases is Wickard v. Filburn. In 1930s rural Ohio, a man named Roscoe Filburn owned a cow farm. In order to feed his cows (apparently cows eat kind of a lot), Roscoe grew wheat on his land. In 1938, he was charged with violating the Agricultural Adjustment Act, which imposed regulations on how much wheat each individual farm could legally grow.
Roscoe grew more wheat than the Act said he could, but since he wasn’t selling any of it he didn’t think he was part of the “interstate commerce” that allows federal regulation. The government argued that because he was growing enough wheat to feed his cows, Roscoe wasn’t buying any wheat from other people, and by not buying any wheat he was hurting the wheat market.
Roscoe’s self-sufficiency was in fact illegal. His activity of growing his own wheat was construed as participation in the wheat market, which meant that he was participating in interstate commerce governable by the feds. Roscoe lost the case, and the federal government gained a lot of power.
Does this result make sense? Wickard v. Filburn is probably not going to be overturned, but we should ask ourselves the question anyway.
If you’re anything like me, you have trouble seeing how one guy growing wheat for his cows can be characterized as participation in interstate commerce, but things become more clear if you know the trivia behind it all.
See, a few years previously, FDR had come up with his New Deal, but the Supreme Court kept striking down all of his legislation because they found it to be outside the scope of Congressional authority. Annoyed, FDR threatened to add six more justices to the Court. There are only nine justices to begin with, so an additional six (picked by the President for their partisanship) would be a corruption of what was supposed to be an impartial ruling body.
The Court caved to the threat and stopped ruling New Deal legislation unconstitutional. Wickard was one of the first chances they got to prove their newfound loyalty.
When the Founding Fathers sat down to write our system of government, they were faced with a problem. On the one hand, they wanted to give a voice to the majority. On the other, they needed to protect the rights of the minority. They resolved this tension by creating a federalist Republic -- they created a structural support system in the form of a federal government, and they gave it specific and limited powers.
Any power that they didn’t give to the federal government was reserved for the states. They realized that one big centralized government meant susceptibility to tyranny and majority rule, so they decided on a lot of state governments along with one overarching federal government to kind of manage them.
One of the powers given to the federal government was the Commerce Clause -- it’s a tiny line within the Constitution that gives the government the right to regulate interstate commerce. “Commerce” at the time of the Founding Fathers was synonymous with “trade.” They didn’t want states fighting or taking advantage of each other, so they elected the federal government as an arbiter that could regulate trade among the states.
It is this power that was used to keep Roscoe Filburn from producing his own wheat, and it is this power that was used in 2005 to keep two women in California from growing their own (physician-prescribed) medical marijuana.
In Gonzales v. Raich, the second case on which the government relies, Angel Raich and Diane Monson were California residents who suffered excruciating pain as a result of severe medical conditions. California has authorized the use of medical marijuana pursuant to a prescription by a licensed physician. Both women found conventional medicines unhelpful, but experienced alleviation of symptoms through use of their marijuana prescription.
On August 15, 2002, agents from the federal Drug Enforcement Administration came to Diane Monson’s home and destroyed her six marijuana plants. They did so under the authority of the federal government’s Controlled Substances Act, which deems marijuana possession illegal even though the same possession is legal under California law.
The Supreme Court, in an expansion of the Commerce Clause, held that, like in the Wickard case, Raich and Monson’s home growth and consumption of marijuana meant that they were not buying marijuana from the interstate marijuana market, and thus their activity affected interstate commerce and could be regulated by the federal government.
According to the Court, it makes no difference that the interstate marijuana market is illegal -- because it exists, it is still a market subject to regulation under the Commerce Clause. And it makes no difference that Raich and Monson were not doing anything illegal by Californian standards, nor that they were consuming all of their product and not selling any of it (not that you could even get enough marijuana from 6 plants to sell -- and not that I would know anything about that, of course). Under Wickard, they were still deemed participants in interstate commerce.
Come on, does this make sense? Do you really think that the federal government’s Commerce Clause power is so vast and unyielding as to infiltrate actions taken within one’s own home and never placed for sale on any market?
Because this is what the government is relying on to justify its authority for the Affordable Care Act. This is the power that kept Roscoe Filburn from producing his own wheat; this is the power that kept Angel Raich and Diane Monson from growing their own marijuana; this is the power that is being used to mandate Americans to purchase a service from private companies today….
… Kind of. See, even though I would argue that Wickard and Raich are travesties, at least in those cases there is some kind of activity going on. Roscoe was growing wheat; Diane and Angel were growing marijuana. The Affordable Care Act mandates that all individuals purchase insurance even if they are not engaged in any sort of healthcare-related activity.
Just by being American, they have to buy insurance -- they have no choice. When the Supreme Court rules on this in June, what they will be ruling on is whether or not inactivity can now be construed as activity affecting interstate commerce. Think of the implications of that -- if refusal to participate in a market can be seen as participation in that market, there is no end to what the Commerce Clause can regulate.
Try to think of one thing that the federal government could not reach under the Commerce Clause -- it’s a tough bid, let me tell you.
Is this in keeping with the distribution of power imagined by our Founding Fathers? I would argue that it’s not. We are allegedly a de-centralized federalist Republic (a.k.a., we are a system of states, with limited rights granted to a federal government acting as “manager”), but legislation like the Affordable Care Act, if found constitutional, effectively eliminates our status as a federalist country.
And here’s where I need to be clear -- I’m not arguing that the Affordable Care Act isn’t helpful, or effective, or good. I’m arguing that if we want the federal government to have the authority to enact the Affordable Care Act, we need to start talking about what we really want our system of government to look like. Because if we want to expand the federal government to the extent that the Affordable Care Act does, we can’t keep pretending that we believe in the divided system of power that our Founding Fathers prescribed.
The Affordable Care Act and the concept of a limited-powers federal government do not mesh. If we do not agree with the concept of federalism, then we need to amend the Constitution.
As a final note, I’d like to point out that I readily acknowledge the failures of our current health care system. The elimination of pre-existing conditions as a barrier to coverage would do a great deal of social good. But are you confident that everything that the federal government does with its newfound power will be good?How much do you trust the federal government, and the politicians who run it?
That’s the debate that needs to be had, not whether or not all Republicans hate women. We don’t, not all of us. Conservative feminists exist -- please don’t ignore our voices.