Last month, I attended the second annual Texas Tribune Festival on behalf of We Texans and spent the entire day in the Health & Human Services track. The opening session was entitled Texas vs. Obamacare, a discussion with Attorney General Greg Abbott. Greg Abbott has been a thorn in the side of the federal government on several issues lately and I find that highly commendable. In general, I have a lot of respect for anyone who gets up every morning and sues the federal government. I found his opinion on the details of the Obamacare decision very informative. However, I fear that sometimes he may be fighting Washington on the right issues but for the wrong reasons. Allow me to explain.
During the audience Q&A portion at the end of the session, the A.G. was asked about Medicare:
“We do have a single payer government run health system for old folks, Medicare, and I’m wondering if you have an opinion on the constitutionality of that program and whether you think that like Obamacare that it should also be repealed and replaced?”
For a “Don’t Tread on Me” flag-waving guy like Greg Abbott this question should have been easy even though the limited government answer may have angered most of the liberal-leaning Austinites in the crowd. However, Abbott’s answer did not anger the crowd it placated them instead:
Abbott: “On most of these programs, Medicare, Social Security, etcetera, they are based upon the tax and spend authority Congress has under the US Constitution. Let me take a step back, because I always presume people know the first steps in this process. Unlike state legislatures, the U.S. Congress does not have unlimited authority to pass whatever laws it wants. In order for Congress to pass a law, they have to have a specific provision in the US Constitution that authorizes them to pass that law. The pathway Congress has taken for a lot of these programs has been the tax and spend authority in the US Constitution. Congress did not take that pathway in Obamacare. Congress overtly argued the pathway they took was the commerce clause.”
Questioner: “I understand that, I’m asking if you have an opinion on the constitutionality of Medicare.
Abbott: “Yes, was based, as I understand it, Medicare was based on Congress’ tax and spend authority.”
Questioner: “In your opinion, Medicare is constitutional?”
Abbott: “Medicare, based on the tax and spend authority of the U.S. Congress seems like it would be constitutional.”
Did you catch that? The Texas Attorney General said Medicare, a government run health insurance program, is constitutional under the tax and spend power of the U.S. Congress.
That tax and spend power is nested in The General Welfare Clause, which is one of those clauses used to justify any government program. The General Welfare clause was never meant to convey broad power to Congress. Both James Madison and Alexander Hamilton agree on this point, and wrote about it in the Federalist Papers. Hamilton said the following in Federalist 83:
“The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.”
Hamilton is rather explicit here, Congress has specific listed powers and the fact that those powers are listed makes any belief that Congress has a general power over anything it considers to be for the “general welfare” of the nation ludicrous.
In Federalist 45, James Madison outlines the same principle:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
The General Welfare clause does not give Congress the power to pass laws that are not derived from the enumerated powers listed after it in the Constitution. Instead, the power to tax and spend is meant only to finance the powers that are listed.
Our Attorney General’s answer on the constitutionality of Medicare can only mean one of two things: Either, he was simply trying not to offend those in the audience. If this is the case, it tells us that Abbott will say what he thinks he needs to say in certain crowds, which is not an admirable quality, it is a cancerous one. Or he actually does believe Medicare is constitutional under the General Welfare clause. Neither of these possibilities warms my liberty-loving heart.
So what should Abbott’s answer have been from the position of a constitutionalist? He should have stated, unequivocally, that Medicare is unconstitutional for the same reason Obamacare is unconstitutional: the Constitution doesn’t give Congress any power to make laws concerning health care. Additionally, any insurance program for the aged and disabled should be created at the state, county, or local government level, if the people so choose to create it. That would have been the constitutionally-correct answer to give. Yes, that answer may have upset some but it would have been the correct one.
Our Attorney General is to be commended for challenging the federal government as much as he does. However, if he is defending our cause with a severely flawed constitutional interpretation; he may be doing more harm than good. It is imperative that our arguments be based on the ideas found in such documents as the Federalist Papers, the Philadelphia Convention Debates, and various other ratifying conventions.
The Constitution means today what it meant at its construction. It cannot be construed to have any other meaning. Our founding document can only be changed by amendment, not by the whims of men in power. Given his comments, it’s not clear why Attorney General sues the federal government as often as he does. He seems fond of waving the Gadsden flag, an almost universal symbol of freedom but if we’re to enjoy that freedom, if we’re to restore a constitutional republic, we must base our policy and our actions on the Constitution as it’s written not merely on what is politically correct or popular.