The federal government has taken advantage of Supreme Court rulings to dramatically expand the scope of its intrusions into Tenth Amendment rights. In recent years, the federal government has been particularly aggressive in this regard, pushing the scope of federal regulation to the limits of what courts are likely to uphold, apparently accepting the risk of judicial invalidation in some cases on the logic that some or most federal actions will survive judicial scrutiny. These actions tend to set precedents, and the precedents become the basis for future expansions, thereby continuing the steady erosion of the Constitution’s constraints on federal power. Two areas of public policy stand out, in particular—Health Care and Environmental Regulations. In the area of Health Care, the Patient Protection and Affordable Care Act of 2010 (“Obamacare”) is a dramatic expansion of the federal government’s reach into our daily lives, on an unprecedented scale. It has already begun to unleash a cascade of unintended consequences, including the fact that employers will be increasingly incentivized to stop providing health insurance for their employees. The legislation fixes few of the problems we face in health care, and in fact makes several of them markedly worse. It takes us further away from what should be the goal of health care reform, namely patient-driven, market-based, affordable and accessible health care in which health insurance is primarily a means of spreading the risk of catastrophic illness, rather than the cost of routine care.
Obamacare is an unconstitutional federal overreach and violation of Tenth Amendment rights, in at least two ways: first the Individual Mandate; and second, the Mandatory State Medicaid Expansion/Health Insurance Exchange. The mandate that individuals purchase health insurance would be the first time that the federal government has required citizens to purchase a good or service as an exercise of the commerce power. Under Lopez, health insurance is neither a channel nor an instrumentality of interstate commerce, so the mandate would have to rest on the argument that health insurance is an activity that substantially affects interstate commerce. The mandate, tied to a penalty, may also violate the Due Process Clause of the Constitution.
Obamacare also requires that States dramatically expand their Medicaid programs, and establish new health insurance markets to be regulated as utilities for the socialization of health care costs. As such, under Printz, Obamacare may well constitute a “commandeering” of state agencies and budgets, because it turns them into instrumentalities of the federal government.
In terms of Environmental Regulations since their rise in the 1960s and 1970s, environmental standards adopted by the federal government and implemented chiefly by States have achieved enormous improvements in environmental quality. But over time, the main federal regulatory agencies in the environmental field have grown increasingly heavy handed. With today’s clean energy and environmental agenda, the field of environmental regulations has become a central front in the battle to preserve the Constitution’s balance of federalism.
Today, the Environmental Protection Agency and Department of Interior are using regulatory power to invalidate highly successful state programs that are entirely within the law; to accomplish climate-change policies that have been rejected by Congress; to create stifling regulatory uncertainty in those sectors of industry that compete with the goals of radical environmentalists; and to punish States that pursue a free-market, limited-government regulatory model. By expanding the scope of environmental regulation to the very limits of what courts will allow, and often overstepping the boundary, the federal government’s energy and environmental agenda threatens the very foundations of our federal system.
Here in Texas, it is also increasingly viewed as a threat to the state’s economic future. The new regulations target state programs that have been highly successful in improving air quality. From 2000 to 2008, Texas lowered ozone emissions by 22 percent while the Nation as a whole achieved only an eight percent reduction. This progress in air quality occurred while the Texas economy was growing a third faster than the Nation as a whole.
The Environmental Protection Agency’s decision to regulate COs as a pollutant under the Clean Air Act is another attempt to accomplish through regulation the very climate change bills that Congress has repeatedly rejected. By fiat, EPA declared that States must now regulate greenhouse gases as pollutants beginning January 2, 2010 or EPA will do it for them. Announcing their intention to sue the government in federal court, Texas Attorney General Greg Abbott and chief environmental regulator Bryan Shaw wrote, in a letter to EPA “we write to inform you that Texas has neither the authority nor the intention of violating, ignoring, or amending its laws to require the regulation of greenhouse gases.”
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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary and is currently Chairman of the Central Texas Tea Party. Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010). Email: Wes@wesriddle.com.
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