Critics of Obamacare are now upping the ante, claiming that its basic outlines are not just unwise but unconstitutional. I'm no healthcare expert, but I have spent the last three decades studying the Constitution, and the current plan easily passes constitutional muster.
It's true that the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself. Other matters are left to the states under the 10th Amendment.
But if enumerated power does exist, the 10th Amendment objection disappears.
Under the interstate commerce clause of Article I, activities whose effects are confined within a given state are to be regulated by that state government, or simply left unregulated. But the federal government is specifically empowered to address matters that have significant spillover effects across state lines or international borders.
Federal regulation makes obvious sense if the interstate or international issue involves trade or navigation. But the founders authorized Congress to act even in situations that did not involve explicit markets, so long as the activities truly crossed state lines or national borders. Today, that power properly extends to regulating such things as air pollution that wafts across state lines or endangered species that migrate across borders. In line with this broad understanding, George Washington signed a law preventing Americans from committing even non-economic crimes on Indian lands because such activities did indeed involve "commerce . . . with the Indian tribes."
The healthcare bill clearly addresses activities that cross state lines. These activities are often economic in nature. Currently, workers with preexisting medical conditions may be unable to accept job offers originating in another state -- a reality that clogs the free interstate flow of goods and services. Other Americans relocate to states with better public health benefits, creating interstate races to the bottom as states worry about becoming "welfare magnets." Some grandparents now refrain from visiting their out-of-state grandchildren because of anxieties about out-of-network healthcare delivery systems. Obamacare addresses all of these matters of interstate commerce.
The founders' Constitution also gave Congress sweeping power to impose all sorts of taxes. The slogan of those at the Boston Tea Party in 1773 was "no taxation without representation" -- Parliament should not tax Americans because Parliament did not represent Americans. But after independence, the founders created a representative Congress with explicit authority to tax Americans up, down and sideways.
The longest section of the Constitution's longest article -- Article I, Section 8, to be precise -- opens with the following words: "The Congress shall have power to lay and collect taxes, duties, imposts and excises." During the Progressive era, Americans amended the Constitution to underscore the broad power of Congress to tax, and indeed to tax for redistributive purposes. This is the plain meaning and original intent of the 16th Amendment.
The reason for this sweeping power to tax was clearly set out in Article I: Taxes would "pay the debts and provide for the common defense and general welfare." One special founding-era concern was national security. Taxes would be needed to fund national defense. Today, national health does indeed affect America's ultimate national strength and national defense posture.
This broad view of national defense is precisely the one endorsed by President Washington in 1791 when he signed a bill creating a national bank. The word "bank" does not appear in the Constitution. Nevertheless, supporters of the bank understood that it would exist in the service of national defense, helping to pay soldiers on site and on time and to manage wartime finances. In 1819, the Supreme Court unanimously upheld the bank as plausibly connected to national security.
After the Civil War, Americans amended the Constitution to give Congress another explicit authority relevant in the healthcare debate: Section 5 of the 14th Amendment charges Congress with protecting basic human rights. Healthcare is such a right -- or at least Congress is constitutionally allowed to decide it is. Those who disagree should simply vote for different congressional members rather than hiding behind bad constitutional arguments that do violence to the text and original intent of the 14th Amendment.
Beyond the broad question of federal power, critics of Obamacare have also raised a series of more focused objections. None holds water.
The plan is not a constitutionally improper "taking" of property without just compensation. It is a broad tax connected to a broad set of compensating benefits.
The plan may well have different costs and effects in different states. So do many federal laws, taxes and expenditures. Thus, federal gasoline taxes bite harder in states with higher gasoline consumption. More NASA money goes to Florida and Texas than to various other states. Federal income tax laws allowing deductions for state taxes benefit high-tax states. Mortgage deductions provide more benefits to states with more expensive housing stock.
True, the plan requires people to buy something from a private industry. But if Congress can tax, and can then spend the tax money to buy a policy from private industry, and can then offer this policy as a government benefit, why can't it do all three at once and cut out the middleman? (Would critics really prefer a government-run single-payer plan?)
True, the plan imposes mandates on individuals. So do jury service laws, draft registration laws and automobile insurance laws.
Maybe Obamacare is good policy; maybe not. But it is clearly constitutional. Recent critics of the plan are mangling the very Constitution they claim to cherish.
Akhil Reed Amar, a law professor at Yale University, is the author of "America's Constitution: A Biography."