How / is a National Health Service unconstitutional?

[Jay 🏳️‍⚧️]

My question rests basically on if a national health service like the United Kingdom has (or most other liberal capitalist democracies) would be unconstitutional. I was told by a friend that it would be "wildly unconstitutional", but I'm not sure of how / where in the Constitution that would apply to a nationalized service. I'm looking for a somewhat legal (yet hopefully human readable) explanation for it! Thank you!

[MarkD]

It has to do with the principle of constitutional principle of Federalism -- the idea that the federal government is not constitutionally allowed to pass any legislation it wants to pass, but has to be confined to its enumerated powers. This idea is cemented by the Tenth Amendment (and, to people like me who understand the original intent of the Ninth Amendment, that amendment cements the concept too). The federal government was delegated only certain, enumerated powers by the Constitution, and if Congress passes a law that is not within those enumerated powers, then that law is unconstitutional. (I think the only reason somebody says "wildly unconstitutional" is for dramatic effect.)

Was Congress delegated the power to pass a law establishing a national program like UK's National Health Service? Does the power to regulate commerce among the States mean that the federal government can do that? I don't know what's the right answer to that. I'm tempted to say that if it is constitutionally permissible for the federal government to create the Medicare program, then it is no stretch at all to extend it to everyone in the country, instead of just those who are eligible for Medicare. But is Medicare itself unconstitutional? Certainly no court of law has ever said so. I know of some staunchly conservative people who say it is unconstitutional despite the fact that no court has said so. Some people believe that the courts, including the Supreme Court, are not always correct in the way that they interpret the Constitution.

I'm going to dwell on that some more, if you don't mind. For many staunchly conservative people, the Supreme Court made a big mistake in the case of Wickard v. Filburn.[/url] As that Wikipedia article says, that one decision by the Supreme Court "dramatically increased the regulatory power of the federal government." If the federal government can regulate the amount of crops that you consume/use on your own farm - crops that never leave the four corners of your own farm, much less cross a state boundary line - then apparently the federal government can regulate anything at all in the way you live your life. So, according to the conservatives, the federal government could even, per the logic behind the Wickard decision, regulate how you get health care, whether you can be forced to buy health care insurance. If you scroll down to the bottom of the Wikipedia article, it says that the Wickard decision even lead to the Supreme Court's ruling in National Federation of Independent Business v. Sebelius, the ruling that Obamacare is constitutionally permissible.

The conservatives I'm referring to believe that the decisions in Wickard and Sebelius are serious legal mistakes, these decisions grievously misinterpret how much power our founding fathers meant by the Commerce Clause, and some even believe that all three branches of the federal government do not regard the Constitution at all. Many of the conservatives I'm referring to became ardent, enthusiastic members of the Tea Party movement. I don't know whether your friend who said that an American program like UK's National Health Service would be "wildly unconstitutional" is a Tea Party type conservative or not, but it does sort of sound that way. If that's his political leaning, ask him whether Obamacare is unconstitutional or not, and even whether Medicare is unconstitutional.

[brucejoel99]

I really don't think any reasonable, serious person (conservative or otherwise) can dispute that the federal government has the constitutional authority to tax all Americans to pay for Medicare-style health insurance for all, as it already pays for Medicare for everyone over 65.

[Blue3]

Congress could always pass a law saying "the Supreme Court can not rule on the constitutionality of this", like they did with Medicare.

[Dereich]

Congress could always pass a law saying "the Supreme Court can not rule on the constitutionality of this", like they did with Medicare.

Congress does not have the constitutional authority to ban SCOTUS from reviewing a law. The Supreme Court's power of review comes from the constitution, not Congressional mandate; that power wasn't something granted by Congress so Congress can't just take it away. Nothing in the constitution even arguably gives Congress the right to make itself immune to the other branches.

[Blue3]

Congress could always pass a law saying "the Supreme Court can not rule on the constitutionality of this", like they did with Medicare.

Congress does not have the constitutional authority to ban SCOTUS from reviewing a law. The Supreme Court's power of review comes from the constitution, not Congressional mandate; that power wasn't something granted by Congress so Congress can't just take it away. Nothing in the constitution even arguably gives Congress the right to make itself immune to the other branches.

False.

https://en.wikipedia.org/wiki/Jurisdiction_stripping

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[Jay 🏳️‍⚧️]

It has to do with the principle of constitutional principle of Federalism -- the idea that the federal government is not constitutionally allowed to pass any legislation it wants to pass, but has to be confined to its enumerated powers. This idea is cemented by the Tenth Amendment (and, to people like me who understand the original intent of the Ninth Amendment, that amendment cements the concept too). The federal government was delegated only certain, enumerated powers by the Constitution, and if Congress passes a law that is not within those enumerated powers, then that law is unconstitutional. (I think the only reason somebody says "wildly unconstitutional" is for dramatic effect.)
[...]

He's actually a socially conservative leftist, and he believes they're unconstitutional because Congress doesn't have a Constitutionally defined right to create a health service, but regardless of his opinion, a health service a la the UK is permissible under current Supreme Court decisions, and would require just an extension of Medicare? Either way, thank you so much for the explanation of some legalese.

[Stranger in a strange land]

Congress could always pass a law saying "the Supreme Court can not rule on the constitutionality of this", like they did with Medicare.

Congress does not have the constitutional authority to ban SCOTUS from reviewing a law. The Supreme Court's power of review comes from the constitution, not Congressional mandate; that power wasn't something granted by Congress so Congress can't just take it away. Nothing in the constitution even arguably gives Congress the right to make itself immune to the other branches.

False.

https://en.wikipedia.org/wiki/Jurisdiction_stripping

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Wait, this has been a thing this whole time!? Why isn't this used more often?

Also, could Congress enact a requirement by statute that, for example, the Supreme Court can only strike down a law passed by an elected legislature by a margin of 6-3 or greater?

[MarkD]

Wait, this has been a thing this whole time!? Why isn't this used for every law?

Also, could Congress enact a requirement by stature that, for example, the Supreme Court can only strike down a law passed by an elected legislature by a margin of 6-3 or greater?

I think the reason has to do with ignorance and/or fear.
In a book published in 1980, Prof. John Hart Ely (at the time, teaching law at Harvard) wrote, "Congress's theoretical power to withdraw the Court's jurisdiction over certain classes of cases is so fraught with constitutional doubt that although talked about from time to time, it has not been invoked for over one hundred years." (Source: "Democracy and Distrust: A Theory of Judicial Review," page 46.)
In other words, for over one hundred years, so many members of Congress have either been unaware of the potential to use the power, or they've been afraid that using it is actually unconstitutional, that they avoid even trying to use it. Blue3 said that when Congress passed Medicare, they included a provision prohibiting judicial review, which I've never heard of, and which contradicts what Prof. Ely wrote in 1980.

[CatoMinor]

Strictly speaking, it isn't, as it isn't an enumerated power. That being said, when has that ever stopped the feds before? So ¯\_(ツ)_/¯

[Tintrlvr]

Congress could always pass a law saying "the Supreme Court can not rule on the constitutionality of this", like they did with Medicare.

Congress does not have the constitutional authority to ban SCOTUS from reviewing a law. The Supreme Court's power of review comes from the constitution, not Congressional mandate; that power wasn't something granted by Congress so Congress can't just take it away. Nothing in the constitution even arguably gives Congress the right to make itself immune to the other branches.

False.

https://en.wikipedia.org/wiki/Jurisdiction_stripping

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Wait, this has been a thing this whole time!? Why isn't this used more often?

Also, could Congress enact a requirement by statute that, for example, the Supreme Court can only strike down a law passed by an elected legislature by a margin of 6-3 or greater?

It's not used because everyone involved knows that if the Court wanted to strike down a particular law from which its jurisdiction were stripped, it would find the relevant jurisdiction-stripping provision unconstitutional, too, rendering the whole exercise pointless. There are a lot of writings out there about how jurisdiction-stripping could be unconstitutional. It's not exactly written in the text of the Constitution, but, frankly, neither is judicial review to begin with.