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Repealing Health Care Reform by Constitutional Amendment

James Joyner
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Georgetown lawprof Randy Barnett wants to repeal the just-passed health care reform act by an Amendment to the United States Constitution:

THE FEDERALISM RESTORATION AMENDMENT

The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.

Aside from being oddly crafted, focusing on judicial interpretation rather than the power of Congress, this is just a ridiculous non-starter.

Look, we’ve just passed this thing with 60 votes in the Senate and very comfortable margins in the House.  It’s theoretically possible, if not at all likely, that we could elect Republican majorities in both Houses of Congress in November.  But, unless we elect 67 Republican Senators, we’ll also have to wait until we elect a Republican president to actually repeal the bill; until then, President Obama would surely veto a repeal of his signature achievement.  So, the morning of 21 January 2013 then.  (Let the new guy have his parade and celebratory parties, you impatient louts.)

Doing this will be easy, peasy compared to amending the Constitution.   Doing that would require 2/3 approval in of both Houses of Congress and then send it along to the states, where 3/4 must ratify.  Alternatively, ratifying conventions in 3/4 of the states could spring up and take care of the matter.  That ain’t gonna happen, my friends.

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50 responses to “Repealing Health Care Reform by Constitutional Amendment”

  1. J.W. Hamner Avatar
    J.W. Hamner

    Well, I think he’s got eyes on a much bigger prize than HCR. From a layman’s perspective, that looks like it would pretty much roll back the Commerce clause to the 19th century.

  2. yetanotherjohn Avatar
    yetanotherjohn

    I think the idea is to get 2/3 of the states to call a constitutional convention. Then you can get one or more amendments proposed, which would then need 3/4 of the states to approve the amendment.

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

    I think there is better language than what was proposed (I would focus on distinguishing the powers that congress does and does not hold). The socialized heath care is a symptom, not a root cause. The constitutional amendment should be focused on the root issue, congress stepping out to far to implement one sides view of utopia.

    The 2/3 is still a tall hill to climb. Currently 12 state attorney generals are signing on to the lawsuit. So 22 more states would be needed. And the AG filing a suit is a long way from the state legislatures calling for a constitutional convention.

    There has also been a lot of talk about a constitutional convention “running amok”. But given that whatever comes out of the constitutional convention has to be ratified by 3/4 of the state legislatures, I think even if the constitutional convention came out with other “crazy” amendments, the ratification acts as a break.

  3. Steve Plunk Avatar
    Steve Plunk

    Passed the House by a comfortable margin? The simple solution for those of us wanting to kill this is to take the House and not fund any of it. It’s what most Americans want so it is politically feasible and possible.

    I don’t expect any amendments to the constitution until we are bankrupt. When we have spent ourselves into oblivion we will be forced to have a convention to remedy the out of control congressional spending.

  4. sam Avatar
    sam

    @Plunk

    Passed the House by a comfortable margin? The simple solution for those of us wanting to kill this is to take the House and not fund any of it. It’s what most Americans want so it is politically feasible and possible.

    I tell you what, Steve, let’s revisit this issue in about 4-5 months and see if that last sentence still holds up (if it holds up at all right now).

  5. Eric Florack Avatar
    Eric Florack

    But, unless we elect 67 Republican Senators, we’ll also have to wait until we elect a Republican president to actually repeal the bill;

    I’m not convinced it would happen even then… . As I indicate over at Andrew Ian Dodge’s place this morning.

  6. PD Shaw Avatar
    PD Shaw

    Prof Barnett needs to add another run-on sentence to address the elastic clause.

    Would Republicans support this? Many of them were recently supporting a federal law to override state tort law and state insurance regulation.

  7. Doug Mataconis Avatar
    Doug Mataconis

    To be fair, I don’t think that Barnett is very concerned with what is politically possible at this very point in time. He’s been writing about how to restore the balance of power between the states and the Federal Government for some time now.

    Obviously, there would need to be a massive shift in political opinion for something like this to be something that could actually happen, but it’s worth talking about.

  8. Wayne Avatar
    Wayne

    IMO currently both Parties, the liberal MSM and inside the beltway types are out of touch with the majority of Americans. They all want to spend more money, pass more restrictive laws and consolidate more power. Some just more than others.

    I could see two-thirds of the states proposing an amendment to reaffirm and reinforced what is already in the constitution which is States and individuals rights. It would have a much greater chance of passing if it addresses States and individuals rights in general and not just one piece of legislation not that one piece can’t be a center piece for the rallying cry..

  9. Tim Avatar
    Tim

    Clearly a Constitutional Amendment is possible. I’m sure Mr. Joyner is one of those who said Scott Brown didn’t stand a chance in Massachusetts, too.

    The amendment would simply have to reword the language of Article 1, Section 8, Clause 3, to prevent trade barriers between the several states, rather than to regulate commerce between the several states, since that is what it meant to begin with.

    The sales pitch would be: Simply correcting a bad and dangerous clause which has led to the financial insolvency of the United States and the endangerment of the Republic.

    Geeze, let’s get a little creative and a little less defeatist.

  10. Tim Avatar
    Tim

    Sorry, I meant Barnett

  11. michael reynolds Avatar
    michael reynolds

    I think it is very unfair to dismiss this initiative. I think it is quite likely to succeed.

    I urge Republicans to go all-in on this, spend a lot of time and all your money. This is totally going to work.

  12. sam Avatar
    sam

    Totally.

  13. Wayne Avatar
    Wayne

    I encourage the Republicans to go on all in on a fix like Tim suggested.

  14. Alex Knapp Avatar
    Alex Knapp

    Oddly enough, the individual mandate portion of HCR would actually survive the adoption of this amendment. That strikes me as funny.

  15. steve Avatar
    steve

    “IMO currently both Parties, the liberal MSM and inside the beltway types are out of touch with the majority of Americans. They all want to spend more money, pass more restrictive laws and consolidate more power. Some just more than others.”

    I think that when you look at every poll done on this general issue, it shows that Americans want more services while paying fewer taxes. Find me a poll somewhere that shows the majority of Americans are willing to cut spending in any significant area. No, the NEA does not count.

    Steve

  16. PD Shaw Avatar
    PD Shaw

    Correction to my earlier comment, I now see that the amendment does deal with the “necessary and proper” (elastic) clause. I’m confused by this amendment; I think the only way to understand it is to understand the Professor’s specific interpretation of the relationship between the two clauses. I would call the Amendment the “Restoration of Barnett’s Understanding of Federalism.”

  17. sam Avatar
    sam

    PD, head over to Volokh and see the newest instantiation of the amendment (Randy called for comments and revised in response): Very high-level sausage making. Fun, too.

  18. An Interested Party Avatar
    An Interested Party

    Desperate times call for desperate measures, I guess…some conservatives must feel just like some liberals did about the presidential elections in 2000 and 2004 (it’s a done deal and there’s nothing you can do about it)…well, apart from coming up with whacky, unrealistic ideas like a bogus constitutional amendment…

  19. Tim Avatar
    Tim

    All these libs sound a little desperate to derail the amendment idea, wonder why?

  20. An Interested Party Avatar
    An Interested Party

    All these conservatives sound a lot desperate to derail HCR…I don’t wonder why, but I do wonder if, in the past, the same kind of people wanted to do the same thing to Social Security, Medicare, and Medicaid, among other programs…if so, we see how successful those previous attempts were…

  21. Tim Avatar
    Tim

    First, Interested Party, I don’t think the amendment is as much about health care as it is about a run amok Commerce Clause that is used to justify any and all federal powers in direct and obvious contradiction to the entire document that does nothing but limit federal authority. To then say that a mere clause gives it unlimited power is irrational, but that never stopped a lib.
    When all that you referred to ultimately bankrupt the nation and our bonds are worthless, our money is worthless, let’s see how popular they are then.
    Or, did you miss that Social Security, for the first time, is spending more than it is taking in? Probably too much reading for you.

  22. An Interested Party Avatar
    An Interested Party

    When all that you referred to ultimately bankrupt the nation and our bonds are worthless, our money is worthless, let’s see how popular they are then.
    Or, did you miss that Social Security, for the first time, is spending more than it is taking in? Probably too much reading for you.

    Funny, but it didn’t seem like there were too many people like you complaining about bankrupting the country when there was a R behind the president’s name rather than a D…oh, and I did catch that news about Social Security…I’ve also read that it is easily fixed by tweaking things like the retirement age and raising the wage base for payroll taxes…maybe you haven’t heard of such fixes…glad to be of help… 🙂

  23. Alex Knapp Avatar
    Alex Knapp

    I see that Barnett has revised the Amendment, and it STILL wouldn’t get rid of the individual mandate. Which still makes me laugh.

  24. Steven Taylor Avatar
    Steven Taylor

    Clearly a Constitutional Amendment is possible. I’m sure Mr. Joyner is one of those who said Scott Brown didn’t stand a chance in Massachusetts, too.

    There is a rather radical difference between winning a special election to fill an open seat and amending the Constitution of the United States of America.

  25. Tim Avatar
    Tim

    Interested Party, you’re wrong. I wanted Bush to fix Social Security, but the libs would have none of it. The weakness in the economy was made abundantly apparent with Bush in office and I thought he made every wrong move.
    The difference between you and me is I DON’T rate policy by the letter behind someone’s name.

    I also don’t believe in the Easter Bunny, like making a few minor tweaks to a several trillion dollar debacle. When are those tweaks going to be made, anyway? And, if you are suggesting that increasing the payroll taxes 30% on every taxpayer is a “minor tweak” then there has already been some tweaking taking place.

  26. Tim Avatar
    Tim

    Steven, it was actually more of “belief” meter rather than a political difficulty comparison.

  27. floyd Avatar
    floyd

    First of all, Randy whatshisname is a law professor, questionable conservative credentials at best. Secondly, this is one delusional guy, not “all these conservatives”.
    The country is in the hands of those without respect for liberty, put in place by a woefully ignorant electorate, oblivious to corruption…
    This present extortion has yet to run it’s course because this generation is used to comfort at someone else’s expense and blind to the inevitable consequences.

    Note to liberals, that “dinner bell” you think you hear, is going to turn out to be a rude “wake-up alarm” when the gods of the copybook headings with terror and slaughter return!

  28. An Interested Party Avatar
    An Interested Party

    I wanted Bush to fix Social Security, but the libs would have none of it.

    Oh, by privatizing it? Yeah, that’s some “fix”…

    The difference between you and me is I DON’T rate policy by the letter behind someone’s name.

    Now you’re wrong, as I don’t do that either…

    I also don’t believe in the Easter Bunny, like making a few minor tweaks to a several trillion dollar debacle. When are those tweaks going to be made, anyway? And, if you are suggesting that increasing the payroll taxes 30% on every taxpayer is a “minor tweak” then there has already been some tweaking taking place.

    Good for you…so no Easter eggs in your basket…actually what I’m suggesting is raising the wage base above the current $102,000, hardly raising taxes on “every” taxpayer…

  29. Tim Avatar
    Tim

    All right, look, if you’re going to get serious instead of just yanking my chain, let’s look at this: Social Security and Medicare currently have unfunded liabilities. The National Center For Policy Analysis says (2009): The 2009 Social Security and Medicare Trustees Reports show the combined unfunded liability of these two programs has reached nearly $107 trillion in today’s dollars! That is about seven times the size of the U.S. economy and 10 times the size of the outstanding national debt.

    The unfunded liability is the difference between the benefits that have been promised to current and future retirees and what will be collected in dedicated taxes and Medicare premiums. Last year alone, this debt rose by $5 trillion. If no other reform is enacted, this funding gap can only be closed in future years by substantial tax increases, large benefit cuts or both.

    Show me the tweak of raising retirement levels to say 80 years and raising the wage base to even $250,000 per year will fix that.

    I say it will take “both” but that no politician will be able to sell it and the economy will all come crashing down, just like the last fiscal mess that “no one saw coming”

    The idea of HCR now dumping 32 million more people into Medicare (I know you don’t believe that, but I can back it up) and taxing only the rich as Obama so often points out, is foolish and should not be considered by thinking people.

  30. Tim Avatar
    Tim

    And, I might just point this out, while I am at it. The non-partisan CBO says: “President Obama’s fiscal 2011 budget will generate nearly $10 trillion in cumulative budget deficits over the next 10 years, $1.2 trillion more than the administration projected, and raise the federal debt to 90 percent of the nation’s economic output by 2020”
    The Congressional Budget Office reported Thursday.

    Hmmmmm, who’s drinking kool-aid because of the letter behind the name?

  31. An Interested Party Avatar
    An Interested Party

    Combining Social Security and Medicare is a bit dodgy, as the cost of the latter is being driven up by health care costs as a whole…

    I say it will take “both” but that no politician will be able to sell it and the economy will all come crashing down, just like the last fiscal mess that “no one saw coming”

    Actually, what no politician will be able to sell is the dismantlement of either program, so, of course, taxes will have to be raised and benefits cut to keep both programs solvent…

    Hmmmmm, who’s drinking kool-aid because of the letter behind the name?

    Since it seems to bother you so much, I am willing to concede that you railed against bankrupting the country when Bush was president…it’s just a shame there weren’t more conservatives like you being vocal and voting accordingly back then…

  32. Steven Taylor Avatar
    Steven Taylor

    Steven, it was actually more of “belief” meter rather than a political difficulty comparison.

    ??

  33. Tim Avatar
    Tim

    Okay, so if we assume that “benefits will have to be cut and taxes will have to be raised” to keep both programs solvent, you are assuming that with the federal debt at 90% of economic output (CBO numbers by 2020) and people getting SS benefits when they are 107,(taken to its furthest extreme) that there won’t be a HUGE clamor to ditch these massively expensive programs that only benefit 1% of the population?

    Just like with anything else, there is a tipping point when more people suffer for a smaller and smaller benefit and then public opinion changes.

    What I would like, is for us not to get THERE, but as you point out: “Actually, what no politician will be able to sell is the dismantlement of either program, so, of course, taxes will have to be raised and benefits cut to keep both programs solvent…” it just seems like a responsible thing to do not to get there at all.

  34. Tim Avatar
    Tim

    As for the Bush comment, I was screaming at the radio, calling congressmen telling them not to pass the TARP bill. Just let it crash. If you want to look at it economically, what we did with TARP saved the economy, but it was like saving Chrysler and GM. It all went bankrupt anyway.

    Just between you and me and the rest of the posters, we didn’t save a dang thing. Bonds will drop below AAA and then it’s just a matter of time.

    It will be Cinco de Mayo all over again. (if you understand the reference)

  35. Thomas Bell Avatar
    Thomas Bell

    States must act know to call convention
    -repeal 16th amendment
    -ban unfunded mandates to states
    -ban federal mandates directed torward citizens
    -ban concealed weapon permits and restore gun rights that “shall not be infringed”
    -sell all federal land to citizens cheap to pay for debt
    – enact right of citizens to sue states and federal government
    – create right of citizens to remove federal and supreme court justitces
    – ban energy taxes
    -do away with the IRS,EPA,DEA,and DEPT’s of housing, health, education, commerce and the labor departments

  36. An Interested Party Avatar
    An Interested Party

    re: Tim at March 26, 2010 22:16

    The 8 years of Bush is about a lot more than Social Security, Medicare, and TARP…fighting two major wars while having tax cuts was fiscally responsible?

  37. Tim Avatar
    Tim

    How many times does it have to be proven to sink in? Tax rate cuts increase revenue. So, having wars (as if they just decided to have one one day) with tax rate cuts does not signal irresponsibility in and of itself. Failing to cut spending when there are two wars going on DOES.

  38. sam Avatar
    sam

    @Tim

    The idea of HCR now dumping 32 million more people into Medicare (I know you don’t believe that, but I can back it up)

    You might, to allay the suspicion that you’re a complete hack, get on with the backing up of that arresting claim instead of galloping off to you next talking point. I know some of us would be interested in seeing the proof.

  39. Tim Avatar
    Tim

    First of all, are you gullible enough to believe that they just dropped the “public option?” Really? And I’m a hack?

    So, before I bring you all the quotes from President Obama himself, and get all the analysis from independent sources that I can, tell me honestly that you suspect I’m wrong.

    Are you sure that you’re not just making some liberal pretense that you don’t know what they are going to do with 32 million people who don’t have health insurance because they are either too poor to pay for it (but too rich to be on Medicaid now), they don’t work for someone who provides it, they don’t want it, or they have a pre-existing condition?

    When these people get sick, where do you think they are going to go, now that they passed the health care bill? The hospital, that’s right, very good! And, when they don’t have health insurance, who is going to pay for that health care? Who is the hospital going to bill? Are they going to bill…the Department of Defense? No, I don’t think so, the DoD has it’s own hospitals and doctors. Are they going to bill…the IRS? No, the IRS is going to make sure everyone like them pays their fines, they aren’t going to pay for health care for 32 million people. Are they going to bill…Medicare? Yes! You are a brilliant student.

    But, here is how it starts: “AT&T previously received a tax-free benefit from the government to subsidize health care costs for retirees, who would otherwise be on a Medicare Part D plan. Under the new bill, AT&T will no longer be able to deduct that subsidy.” FROM A BOSTON.COM article, in case you need to go there and confirm.

  40. Rick DeMent Avatar
    Rick DeMent

    How many times does it have to be proven to sink in? Tax rate cuts increase revenue.

    It’s never been “proven” because it’s complete BS. When marginal rates are really high then you can have a situation where revenues fall a bit less then they would have otherwise do to growth. But cutting taxes always results in a lower per capita collection rate … always.

  41. Tim Avatar
    Tim

    Per capita collection rate? Are you serious? DO you expect me to buy that as a measurement? GENERAL REVENUE is the measurement, of course the per capita collection rate is going to drop, that is the whole freaking point! When the Per Capita rate drops GENERAL REVENUE INCREASES. Sheesh.

  42. Rick DeMent Avatar
    Rick DeMent

    When the Per Capita rate drops GENERAL REVENUE INCREASES. Sheesh.

    No not always, unless there is something else going on in the economy, general revenues will drop the only way to get more revenues is for the general economy to grow but that means that revenues would have been bigger had you not cut taxes in the first place.

    When Clinton raised taxes general revenue went up too, so what? When bush raised taxes general revenue went up. When Reagen raised taxes general revenue went up. When Bush 43 cut taxes it went down. cut taxes right now … general revenue will go down. Hell, Obama just cut taxes (to the tune of over 310 billion) as part of the stimulus package and general revenues are going down. Are you really that thick?

  43. Rick DeMent Avatar
    Rick DeMent

    and no per capita revenues should go up due to the increase in over all economics activity if what you say is true. More people working for higher wages should = an increase in per capita revenues. I guess you are that thick 🙂

  44. Tim Avatar
    Tim

    By that theory, why not raise taxes to 100% and tax our way out of the budget deficit?

  45. Tim Avatar
    Tim

    I won’t be goaded into being the only one to research and detail my point of view. Show me the chart where general revenues declined after tax rate decreases and I’ll get the ones that show the opposite, but I won’t do it just myself.

  46. floyd Avatar
    floyd

    “”By that theory, why not raise taxes to 100% and tax our way out of the budget deficit?””
    “”””””””””””””””””””””””””””””””””””””””””””
    The answer is obvious… Giving money to a politician is like giving booze to an alcoholic.
    There’s never enough to satisfy their appetite, they would just slurp it up and look around for more!
    The only way to a tolerable government is a VERY short leash and a penurious allowance.

  47. Grewgills Avatar
    Grewgills

    By that theory, why not raise taxes to 100% and tax our way out of the budget deficit?

    Let’s use your logic on your original premise,

    How many times does it have to be proven to sink in? Tax rate cuts increase revenue.

    By that theory, why not lower taxes to 0% and watch the government revenue soar.

  48. Tim Avatar
    Tim

    Well, if you instituted a national sales tax, instead of a punitive progressive income tax that’s exactly what would happen.

  49. Rich Avatar
    Rich

    Please, are you all saying that the Commerce clause is the end all clause that supersedes the ENTIRE Constitution and Bill of Rights, in all manner shapes and forms? I thought the constitution’s purpose was limit what the Feds could do – not provide super legislative cover under one clause.

  50. Tim Shufflin Avatar
    Tim Shufflin

    I’m just an ordinary American with a small business. You all sound very smart in your arguments and I applaud you all. I only know this, I don’t like communism and I don’t like being told that I have to pay for someone else who won’t/can’t pay for their own health care.

    I don’t care if this brilliant plan saves us all trillions of dollars. The thought of not being free is far worse and the thought of a new communist health care plan even more terrible.

    Free people are not equal and equal people are not free.

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