November 13, 2011
“Throughout history, there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act and all of those challenges failed,” the Justice Department said in a statement in September when it asked the justices to consider the health-care act.
But there is an answer to the obvious question of why the health-care act might not be constitutional while Social Security — and its offshoot Medicare — are. They were built on separate constitutional powers.
Congress contends that its ability to require almost all individuals to buy health insurance or pay a fine comes from its power to regulate interstate commerce and enact laws “necessary and proper” to carry out the goals of the federal government.
Social Security, on the other hand, was justified under Congress’s power to levy taxes and spend money “to provide for the general welfare.”
What that open-ended wording means is an argument
as old as the union.
James Madison thought it meant that the federal government could raise and spend money only for those purposes spelled out in the Constitution.
Alexander Hamilton said it was much broader and gave the government wider latitude to provide services that improved AmericansÂ’ general welfare.
The Hamiltonian view gradually gained ground, but it was no certainty that the Supreme Court of the 1930s was ready to continue to embrace it when it came to the expansive programs of the New Deal. It rejected a federal program of agricultural price supports and controls that Congress had justified under the same taxing powers.
That in turn led to President Franklin D. Roosevelt’s ill-advised and eventually unsuccessful “court-packing” proposal that would have allowed him to shift the court’s balance by adding justices of his choosing.
It turned out not to be necessary in the case of Social Security. Justice Benjamin N. Cardozo, writing for a
seven-justice majority, declared in Helvering v. Davis that
the intellectual battle between Madison and Hamilton was over, and that Hamilton had won.
The
“concept of the general welfare” is
not static, he said.
“Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.”