Rep. Ron Bishop of Utah has introduced a constitutional amendment in the House. It states that, "Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for its purpose that particularly describe the same provision or provisions of law or regulation to be repealed." The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Now it appears that rather than pushing Rep. Bishop's bill, GOP leadership has agreed to require constitutional backing attached to every bill starting in January. Let me first point out some problems in Rep. Bishop's proposed amendment before commenting on the new proposal.
It seems that Rep. Bishop wants the states to pick and choose "provision or provisions" or particular regulations in the legislation that states find onerous. However, picking and choosing will require value judgment by legislators. Why does Rep. Bishop think that states' legislators are better able to make a value judgment about a piece of legislation than the duly elected federal legislators? I am sure the value system of Utah's legislators may not agree with the values of many others in the state on education, immigration, health care, environment quality, equal rights for gays and host of other issues.
My point is that value judgment is in the eyes of the beholder and one's values may dramatically differ from the values of others. If Rep. Bishop does not trust the values of the representative government of all the people in the United States, what is so special about the values of only two-thirds of the states? Isn't the voice of people of one-third of the states germane on matters affecting them? If picking and choosing provisions in a legislation means that it should pass a cost-benefit test, that is also very problematic to resolve due to twisting of statistics by interest groups to promote their agenda. Every state may have to set up independent commissions to make recommendations to the state legislatures about the provisions in a particular legislation, adding another level of costly bureaucracy. That is also questionable, given the politics involved in the appointment of members to commissions.
Let us look at the last part of the sentence in the 10th Amendment. It says, "powers... are reserved to States, or to the people." It gives rights to states' as well as rights to the people. In a representative government, people of the United States elect their representatives to the House and Senate. Why is the people's voice through its federal representatives less important than the voice of two-thirds of the state legislatures?
It appears that this push for repeal was triggered by the health care legislation, especially the requirement that everyone buy health insurance or pay a penalty of 2.5 percent of income, exempting poor, elderly and some others. Article 1, Section 8, of the Constitution assigns the Congress the "...Power To lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;" I emphasize words "Imposts" and "general Welfare."
Health care legislation is for the general welfare of the people and the Congress has the right to impose a levy to promote it. The only question is if it is going to be uniform. Perhaps Rep. Bishop should make sure that everyone in the U.S. is treated equally with this levy.
Some may consider health care decisions as a personal matter but they do not consider the spillover effects of one's health on the society at large. When one shows up in an emergency clinic without insurance, it increases the cost of insurance for others. We all suffer if any one has HINI or AIDS. We do not have personal freedom to impose costs of our actions on others. Also, a healthy society is a productive society and hence we all have a stake in the health care of other people.
Rep. Bishop's opinion piece in this paper on Dec. 18 invokes the founders' intent to justify his position while ignoring the fact that the founders' intent is codified in the Constitution. He does not even trust the independent Supreme Court's decisions.
The recent agreement among GOP leaders to justify constitutionality of every bill is also a fruitless effort. The Constitution lays down very general principles, for example, broad powers granted to the Congress in Article I, Section 8. Moreover we all have the opportunity to use the independent judicial system to arbitrate. Democracy is not a luxury because it takes patience, compromise, reconciliation and time to make it work.
Mathur is former chairman of the economics department and professor emeritus of economics at Cleveland State University, Cleveland, Ohio. He resides in Ogden. His articles also appear in vijaykmathur.blogspot.com. He also offers blog posts for the Standard-Examiner at http://blogs.standard.net/economics-etc/.