I've been getting a lot of e-mail (some sensible and restrained, some apoplectic and vituperative) because I told CNN that state laws that purport to exempt a state's citizens from the proposed federal health care mandate would be ineffective. My correspondents ask, what about the 10th Amendment? How does Congress have the power to mandate that we all buy health insurance? Here's a little more detail:
1. By virtue of Article I, section 8 of the Constitution, Congress has the power to "regulate Commerce . . . among the several States." This power has been understood broadly, and includes the power to regulate matters that substantially affect interstate commerce.
Health care is commerce. That is why Congress has power to regulate it, including the power to impose a health insurance mandate. Doing so would substantially affect interstate commerce.
The Tenth Amendment would not affect Congress's power in this regard. The Tenth Amendment concerns "[t]he powers not delegated to the United States by the Constitution," but the power to regulate commerce is one of the powers that is "delegated to the United States by the Constitution."
2. I recognize that point #1 is not a 100% slam dunk. Someone will surely challenge the federal health insurance mandate (if it gets passed), and it is conceivable -- though, I think, unlikely -- that the Supreme Court will hold it to be outside the scope of Congress's commerce power. But that's not what I was saying to CNN anyway.
The point I was making to CNN is that whether any particular state passes a law prohibiting health insurance mandates in that state is irrelevant. That's because federal law trumps state law. The Constitution provides that federal law "shall be the supreme Law of the Land." So where state and federal law conflict, federal law wins.
That's why, for example, the Supreme Court has held that Congress (using its commerce power!) can prohibit the use of marijuana, even in states, like California, that expressly permit marijuana use for medical purposes. The Court specifically said, "state action cannot circumscribe Congress' plenary commerce power." In other words, federal law trumps state law.
So if Congress passed a law requiring everyone to buy health insurance, that law would trump any state law that says that no one in the state has to buy health insurance.
Of course, to be supreme, a federal law has to be constitutional. So yes, someone could challenge the constitutionality of a federal health insurance mandate. Maybe it would be constitutional, maybe not (I think it would be). But in any event, it wouldn't matter what any state's law said.
That's the point that I was making to CNN. Some states are passing or considering laws that declare that there are no health insurance mandates in those states. Those laws are pure political grandstanding. They will have no effect of the validity of a federal health insurance mandate. The federal health insurance mandate might be valid or invalid, but it will be valid or invalid everywhere, without regard to the law of any state.