A Congress of Unlimited Power?

Preamble

In the debates about the passage of the Patient Protection and Affordable Care Act (ACA), there were charges (and denials) that ACA would include “death panels”. In fact, a central feature of ACA was the now-defunct Independent Payment Advisory Board (IPAB), which was

to have the explicit task of achieving specified savings in Medicare without affecting coverage or quality….

Beginning in 2013, the Chief Actuary of the Centers for Medicare and Medicaid Services determined in particular years the projected per capita growth rate for Medicare for a multi-year period ending in the second year thereafter (the “implementation year”). If the projection exceeded a target growth rate, IPAB was to develop a proposal to reduce Medicare spending in the implementation year by a specified amount.

With regard to IPAB’s recommendations, the law said: “The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums … , increase Medicare beneficiary cost sharing (including deductibles, coinsurance, and co-payments), or otherwise restrict benefits or modify eligibility criteria.”

Defenders of ACA claimed that IPAB wasn’t a “death panel” (or an incipient one) because ACA specifically prohibited it from recommending the rationing of health care. But IPAB didn’t have to ration health care directly. All it had to do was “develop a proposal to reduce Medicare spending … by a specified amount”. Any such proposal, which would go into effect unless Congress overrode it, would have had the effect of forcing rationing of some kind, by some means (e.g., reducing or eliminating Medicare coverage for certain conditions, or reducing the compensation of providers who might treat certain conditions, thus discouraging them from treating those conditions in the first place).

It’s true that IPAB, or something like it, was (and still is) necessary in a government-run systems like Medicare and Medicaid, where the amount of money available to provide health care is limited by Congress. (In fact, some lefties openly admit it.) But that just moves the problem up a level. It means that Medicare and Medicaid, which are essentially mandatory for tens of millions of persons, constitute a system for rationing health care. (All misguided rhetoric to the contrary, free markets are not rationing mechanisms.)

But what if Medicare and Medicaid didn’t exist and many older Americans had to do without many of the health-care products and services that they enjoy because they couldn’t afford those products and services? The existence of Medicare and Medicaid, whatever their benefits, is tantamount to governmental rationing; that is, their existence forces the redistribution of income among citizens (beneficiaries of Medicare and Medicaid vs. those who subsidize it) and the reallocation of resources toward health care and away from other uses.

The bottom line: It’s true that ACA doesn’t mention death panels and prohibits rationing. But ACA in fact established a “death panel” (IPAB) and authorized (even more) rationing of health care than was already the case under Medicare and Medicaid, pre-ACA.

In sum, a thing can exist without being called by a particular name. Reverse discrimination, for example, exists because Affirmative Action and various “diversity” programs, as they are practiced, foster discrimination against straight, white males of European descent. But to say that Affirmative Action and “diversity” programs are discriminatory is verboten in left-speak.

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

The same principle — that a thing can exist without being called by a particular name — applies to the Constitution of the United States. An obvious case is found in the structure of the Constitution, which is characterized as a system of checks and balances. The term “check and balances” is found nowhere in the Constitution, but the Constitution does nevertheless provide checks on the power of the central government and balances between the powers of the central government’s branches and between the powers of the central government and State governments.

Likewise, the Constitution nowhere says that the powers of the central government are enumerated (and therefore limited). But they are, despite Richard Primus’s casuistry in “Herein of ‘Herein Granted’: Why Article I’s Vesting Clause Does Not Support the Doctrine of Enumerated Powers” (U of Michigan Public Law Research Paper No. 681, October 8, 2020).

What is the Vesting Clause? It is Section 1 of Article I, which says this:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Primus makes much of what he calls the lack of parallelism between that language and the its counterparts in Article II (which defines the executive branch) and Article III (which defines the judicial branch); viz.:

The executive Power shall be vested in a President of the United States of America.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Which, as I will show, is akin to making a mountain out of a molehill. To what end?

This: Primus’s attack on the Vesting Clause is really an attack on the doctrine of enumerated (and therefore limited) powers. As he says,

the idea that Article I’s Vesting Clause limits Congress to a set of textually enumerated powers was virtually unknown in the ratification debates of 1787-88. 18 It was also absent from the First Congress, and conspicuously so. The First Congress prominently featured conflict over the question of whether Congress was limited to powers specifically enumerated in the Constitution: think, for example, of the fight over chartering the Bank of the United States. The Representatives arguing for the enumerationist position in those debates had every incentive to point to the Vesting Clauses for support, if they thought the Vesting Clauses supported their view. None of them did, which suggests that none of them thought Article I’s Vesting Clause established the enumeration principle.

In all of the Federalist Papers, for example, thirty or so of which specifically addressed questions about the extent of congressional power, Publius invoked the Vesting Clause exactly zero times.

This is nothing but argumentative sleight of hand. The Vesting Clause may not have been invoked, but the Constitution was ratified on the clear understanding that the powers of the central government were limited because they were specifically enumerated (mainly in Section 8 of Article I). The proponents and opponents of specific legislation wouldn’t have argued about the broad language of the Vesting Clause. Rather, they would have argued about the specific inclusion or exclusion of the subject matter in text of the Constitution. The main repository of specific language is Section 1 of Article I.

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

Under the Articles of Confederation (Articles) that preceded the Constitution, the central government — such as it was — depended on the whims of member States to finance its operations. It therefore proved difficult to provide for such things as the defense of the United States, the conduct of foreign affairs on behalf of all of the States, and the free flow of trade among the States. Further, every State was equal to every other State — one State, one vote — which made it possible for regional coalitions and even individual States to wield disproportionate power. (Among the compromises that underlay the adoption and ratification of the Constitution was the creation of the Senate, which wields some amount of disproportionate power but not as completely as did the States of the confederation.)

The Constitution doesn’t specifically say that the powers of the central government are enumerated and limited, but they are, as a legacy of the Articles:

Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

(Aside: Whereas the Articles of Confederation refer specifically to a “perpetual Union” of the member States, the Constitution nowhere says or implies that the resulting union was meant to be perpetual.)

During the debates about the ratification of the Constitution, a great many speeches were given and great amounts of ink and paper were devoted to the issue of constraints on the central government. Alexander Hamilton, James Madison, and John Jay — leading advocates of ratification — issued their arguments in the series of essays that became known as The Federalist Papers. Among Madison’s contributions are Federalist Nos. 41, 42, 43, 44, and 45. Those five papers constitute a defense of the specific powers granted to the central government by the Constitution. Madison nowhere adverts to unmentioned, free-floating power because the Constitution doesn’t grant any such power to the central government.

As Madison puts it in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined [emphasis added]. Those which are to remain in the State governments are numerous and indefinite.

Preamble

The Issue at Hand: Whether the Powers of Congress Are Specifically Enumerated in the Constitution

Enumerated and Limited Powers: The Lynch-Pin of the Constitution

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