Policy Documents

States push back against ObamaCare

Richard Grant –
March 1, 2011

A law that is not enforced might as well not exist. We see this in property rights, as well. An owner that fails to challenge those who use his property, whether land or trademark or any other form, over time risks losing control of that property. This is true for individuals, corporations and sovereign states. The failure to live on or defend one’s territory will result in its forfeiture to those who are willing and able to establish a presence there.

The failure to enforce a law will lead people to believe that it will never be enforced and allow them eventually to forget that the law exists. In this regard, the U.S. Constitution is no different from any other law.

The United States began as a decentralized federal republic within which the states retained sovereignty except for those powers specifically granted to the central government by the Constitution. It largely remains so, but over time the exercise of real power has gravitated toward the center.

The 10th Amendment of the U.S. Constitution states that “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.” This amendment has not been repealed, but it has been neglected.

It was once taken for granted that the states were an integral part of a broader federal government.

But now when we speak of the “federal government,” we mean the central government not including the states. From the beginning, the natural exercise of its powers led the central government to push out the practical limits of those powers. War, and later the 17th Amendment, also reduced the practical influence of the states over the central government.

Politicians in any government are tempted to curry favor with voters by visibly, if selectively, spending money on them while de-emphasizing the real source of those funds. As the central government expanded its powers of taxation and money creation, it was increasingly able to buy the cooperation of the states for its own programs. State governments were happy to receive extra funding without having to raise state taxes. Although there were strings attached to the funding, the full burden of the new commitment would usually not be realized until later.

Distracted by such temptations, the state governments have unwittingly abetted the expansion of the central government and its encroachment on their areas of responsibility. Education is not a constitutionally authorized area of federal responsibility. But the offer of federal money weakened the states’ resistance to federal mandates and programs. The centralization of influence over education has weakened private authority and reduced the choices available to students and families.

The central government has overstepped its constitutional authority in the area of health care. Resource-wasting programs such as Medicare and Medicaid impose burdens on the states and all taxpayers. Had the states more presciently defended their spheres of sovereignty, they might not now be caught in such a regulatory and fiscal trap.

With the passage of the so-called Patient Protection and Affordable Care Act, the central government has claimed even more powers originally reserved to the states and the people. It is also unaffordable.

We now see state governments standing up to defend themselves, particularly in the areas of educational choice and freedom of choice in health care. They are returning responsibility to the people.