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Reaching beyond health care: The real significance of Judge Hudson’s decision and reasoning…

Reflecting on yesterday’s very surprising decision in Virgina regarding health care….

One of the more enjoyable (for me at least) lectures I give in my basic American government course focuses on the “necessary and proper clause” — also known as the “elastic clause” for reasons that are central to my talk. Specifically, we are talking about Article I, Section 8, paragraph 18 of the US Constitution, and how its interpretation has shaped the power of the federal government, especially in relation to the states (i.e., federalism).

The stage for the clause is set in the previous 17 paragraphs, each articulating a power of Congress. A laundry list of sorts, those powers seem to run the range from the narrow and mundane (“to fix the Standard of Weights and Measures”) to the most general of authorizations (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). While we do not know much of the details of the give-and-take at Philadelphia in the summer of 1787, the arrangement of those 17 paragraphs gives the impression that the Framers were at some point engaged in a discussion of all the shortcomings of the Articles of Confederation that they wished to correct by empowering this newly formed congressional body. And one can imagine that, at some point, they realized that the list could go on and on if they were to bother elaborating all those powers that would be needed to fulfill those already listed. It is therefore possible to imagine that the “necessary and proper” clause was the result: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.”

Great debates over the bill of rights and constitutional treatises notwithstanding, I regard paragraph 18 as THE key provision of the US Constitution — and I spend a great deal of time and effort in my introductory courses (and textbook chapter) making that quite clear, not only for its expansive impact on the powers of Congress (and thus of the national government as a whole), but also because it provides the primary example of a constitutional provision that cried out interpretation.

The words are quite clear — to a point. It is how they are read or spoken that makes the difference. Consider, if you will, how the words of the clause can be approached, especially the key phrase “necessary and proper”. On one reading, the clause can be read as restrictive — that is, the Congress “shall” be limited to pass laws that are needed and appropriate to carry out those enumerated powers — and nothing more. It is not “do whatever is necessary and proper,” but rather “do only what is necessary and proper”. The alternative reading — “do whatever” — is obviously more expansive.

A great deal of political life in the first years of the republic centered on the difference in those phrasings, typically personified in the contentious and heated relations between Jefferson and Hamilton and their respective allies. For those of us who teach and write about American government, the watershed and decisive historical moment for settling the dispute was the Supreme Court’s 1819 decision in McCulloch v. Maryland — a case cited in almost every textbook along with Marbury v Madison as the foundational decisions of the country’s early years. My argument is that without that particular decision and its expansive interpretation (by John Marshall) standing as a core precedent, the US constitutional system would have developed quite differently.

This is not to say that the decision in McCulloch and the expansive view has not been challenged. In fact, a case can be made that US constitutional history is one extended narrative involving constant efforts to both restrict and expand the use of the necessary and proper clause. The McCulloch decision, for example, did not settle the substantive issues of the national bank which took on even greater political importance during the 1820s. Nor can one ignore the role that the expansive interpretation played in the debate over slavery and the national government’s power to abolish (or severely limit it) legislatively. The last great debate along this lines took place in the 1930s as part of the battles FDR fought with a Supreme Court that would not buy into the argument that some delegations of authority by Congress went beyond what was “necessary and proper”. But after 190 years, the McCulloch precedent is generally accepted as the central standard, to the point that our attention often focuses elsewhere when constitutional challenges are raised.

Which leads me to my reaction to Judge Henry Hudson’s decision in ruling that the requirement (mandate) for individuals to purchase health insurance (or be penalized, in the form of a tax) was unconstitutional. While the New York Times has opined that is “was no great surprise” that a Bush appointee would render such a decision, the fact is that it is quite a surprise given his use of the necessary and proper clause to rationalize his decision. Let’s put aside, for the moment, the substantive details of the case and that it involved a very controversial provision of a hotly contested law. What is surprising — even shocking — is that a sitting federal judge has returned to a restrictive view of the necessary and proper clause that runs directly counter to settled historical precedent.

The implications of the reasoning in this decision — should it be upheld on appeal –would involve a radical alteration of the the basic constitutional principles under which we have been operating for nearly two centuries (if not longer, if you consider the actions of Hamilton in establishing the national bank, etc.).

That said, given the current turmoil in judicial thinking (and the growing influence of The Federalist Society), it is not out of the question that this narrower view of the clause might have a chance of gaining the support of a Supreme Court majority, thus returning us at least to the more restrictive views of national power held by the courts in the first half of the 1930s. We have seen some movement back to state-centered views of federalism in recent SCOTUS decisions, and the restrictive view of the necessary and proper clause would fit into that trend. Such a move to limiting national authority would not be illegitimate, but it would be transformative given the history of the past eight decades.

December 14th, 2010 Posted by | accountabilitybloke | no comments

My digitized me — no, really!!

Summer break is typically a time for vacations — unless you’re an academic, who is so over committed and behind schedule that any thought of a vacation is out of the question. It seems I use a good deal of my summer working on personal health care issues. This summer. I’ve gone through the usual round of scheduled appointments with cardiologists, endocrinologists, audiologists, physical therapists, and (to make matters a little bit more interesting) a new primary care physician.

I know it is reasonable to expect one’s body to fall apart bit by bit after 60 or so (and I am now three years past that critical point), but there is something different in this process as we move increasingly into the “digitized” age.

The first step took place a year or so ago when I was shifted to an insulin regimen and began to “upload” my readings into a computer program, which then provided me with suggested dosage numbers, as well as a measure of my relative progress. A week or so ago, we (the docs and my health insurer, who seems to have more control over my life than I do) decided to put me on an insulin pump which will hopefully bring down my blood glucose numbers to more appropriate levels over the long run. There was nothing critical or urgent in suggesting the move to the pump, but I had “leveled off” and seemed ready to take it “down” a few notches. (Little hope of total control, but there has certainly be some progress.)

Earlier today I received word that the “pump” was “approved” by my assigned private insurers “death panel” and all that digital gadgetry is on its way from California. I will soon have more radio signals flashing around my body as the pump (secured on a waistband and tethered to my body by an injected 9mm sharp linked to a two foot tube that conveys the insulin every five minutes or so) communicates with my blood glucose meter. Gosh, doesn’t that sound exciting?

Textbook version of high frequency hearing loss

Then there was my appointment at the audiologist this afternoon who made official what all my family, friends and students have known for years — I can’t hear worth a damn! (Well actually I can, if you make a noise within my limited range of good hearing….) For the third or fourth time in my life I failed the hearing test with flying colors, although the slope on the “audiogram” has gotten increasingly steeper. (I forgot to ask for a copy of the audiogram, but the one below is pretty close to what mine looked like. It seems like both ears are engaged in a “race to the bottom”….)

When I failed these tests in the past I considered and even tried out hearing aids — but the technology (analog) and the “ear stuffing” plugs moulded into the ear did not “sit well” and I soon surrendered to life as an annoying spouse, father, colleague, teacher, etc.

Well now we have seemingly moved onto the digital age in hearing aids — or I guess we have finally gotten to point where digital options are reasonable (benefit-cost ratio was just not right in the past). Looking at my options, it seems I can get a pair (yes, I need two) that not only allows for adjustments in what you hear and how you hear it, but also uses Bluetooth technology and can now “connect me” to my iPhone (which will remain in my pocket), my iPod, my TV and computer, etc etc.

I am not getting a hearing aid — rather I am getting a multifuntional set of Bose-like headphones!!!

Actually, I wonder how my body is going to adjust to the bombardment of Bluetooth signals that comes from the pump and the hearing aids….

I was amazed at how quickly they arranged for my “fitting” — tomorrow afternoon. Now that indicates that they’ve determined my hearing loss is so bad that I pose an immediate danger to my fellow humans, or they are desperate to get my $3000 or so (no coverage from the good old health insurers….)

Of course this also means that I will have to share my comments and observations with as many of you who decide to follow this blog….

August 13th, 2009 Posted by | accountabilitybloke | no comments