Health Care and the Attempted Redefinition of Federalism

Health Care and the Attempted Redefinition of Federalism

JURIST Guest Columnist Steven D. Schwinn of The John Marshall Law School in Chicago says that the health care litigation has provided a forum for novel Tenth Amendment and federalism claims, which were properly ignored by the Sixth Circuit in its recent ruling upholding the individual health care mandate…

The recent ruling by the US Court of Appeals for the Sixth Circuit in Thomas More Law Center v. Obama garnered a lot of attention for what it said about congressional authority. The holding, that Congress has authority under the Commerce Clause to require the purchase of health insurance notwithstanding the activity, inactivity distinction advocated by the plaintiffs, was the right one. The opinions by Judge Boyce Martin and Judge Jeffrey Sutton explain why this is the case (although for somewhat different reasons) in some of the clearest and plainest terms seen so far.

Despite the clarity of Judge Martin’s and Judge Sutton’s opinions, this case is as important for what it did not say. In particular, the case did not say a lot about the Tenth Amendment, “states’ rights,” or even more abstract principles of federalism. To be fair, the parties did not press these issues hard. However, some amici argued that these form an important limit on congressional authority. They argued that the Tenth Amendment and federalism principles cabin Congress’s power and keep it appropriately bound. This argument is an important back-end complement to the plaintiffs’ argument-in-chief, that Congress exceeded its limited authority under the Commerce Clause.

This argument is entirely novel. Advocates for this position, both in this case and outside it, argue that congressional authority is limited and constrained, as opposed to merely defined (which could be quite large, depending on the definition). Their principal argument is that the language of the Commerce Clause reflects the limitations; they find further evidence of limits in the Tenth Amendment and federalism principles. There is no support for such a constrained government in the constitutional text or our history or practices. There is, however, overwhelming support for a defined, but not necessarily small, federal government. Advocates therefore work to infuse their libertarian ideals into the Commerce Clause, the Tenth Amendment, and animating federalism principles through brute force and repeated activist claims in litigation like this. They believe that by repeating their claims, and getting courts to adopt them one-by-one, they can slowly but surely reshape the bounds of federal power in the libertarian image. Make no mistake: these claims are an effort to redefine the very meaning of the Constitution in this case and beyond.

The Sixth Circuit properly declined to conspire in this effort. In particular, it declined to take the bait on the novel Tenth Amendment and federalism claims. No judge on the panel, not even Judge James Graham, who wrote that the individual mandate exceeded congressional authority, spent much time on these issues. In fact, when the other two judges considered these issues, they roundly rejected these novel arguments in this case, other cases, and the broader public debates. The case thus not only rightly rejected the purported distinction between activity and inactivity under the Commerce Clause, but it also properly rejected the activist attempts to craft a more robust Tenth Amendment—one that has no support in the Tenth Amendment text, history, or jurisprudence.

One argument is that the Tenth Amendment acts as a federalism limit on congressional authority—that the Tenth Amendment prohibits the federal government from intruding too far into areas traditionally reserved to the states. This is not what the Tenth Amendment says, however, or what it meant to the framing generation. Instead, the Tenth Amendment simply reserves to the states those powers not granted to the federal government. This only says what we all know to be true in a system of dual sovereignty: with a federal government of defined powers, what the federal government cannot do, the states can. In other words, the Tenth Amendment only takes us back to the Commerce Clause question of whether Congress could enact the individual mandate in the first place.

To be sure, the Court has recognized federalism limits on congressional authority. In both United States v. Lopez and United States v. Morrison, for example, the Court expressed some concern that Congress might go too far into areas of traditional state authority. This is a loose, ill defined concern, especially in an era when it is harder and harder to identify particular enclaves of traditional state control. The Court’s ruling in Gonzales v. Raich, and even its ruling just last term in United States v. Comstock, holding that Congress has authority to detain “sexually dangerous” federal prisoners beyond their original sentence, underscore just how much the lines of authority between the federal government and the states overlap. The Sixth Circuit properly rejected claims that the individual mandate goes too far into an area of traditional state control.

Another argument is that the Tenth Amendment prohibits Congress from commandeering citizens. This misreads both the text and the Court’s jurisprudence. The Court tells us that the Tenth Amendment only forbids Congress from commandeering states and their officials, not individual citizens. In fact, the federal government commandeers its citizens in all kinds of ways—from paying taxes to registering for selective service—that are not barred by the Tenth Amendment. It does not matter that Congress commandeers us under its other, non-Commerce Clause authorities: if the Tenth Amendment prevents commandeering citizens, it would prevent commandeering under any authority because it is an independent restriction on anything the government does. The commandeering principle simply does not apply to individual citizens. The Sixth Circuit again properly rejected this novel claim.

A final argument is that the Tenth Amendment prevents Congress from interfering with states’ rights to protect their own citizens from the individual mandate. Thomas More Law Center did not involve this kind of claim, because states did not bring the case, but this claim has formed the backbone of other, state-initiated litigation against the health care law. This argument goes to the newly enacted and reactionary laws in several states that prohibit any requirement that their citizens purchase health insurance, which were used to make a political statement against the individual mandate and to manufacture standing for themselves in federal court to challenge it. This argument is not supported by the text, structure, history, or jurisprudence. Instead, the Tenth Amendment simply reserves to the states those powers not granted to Congress. For those powers granted to Congress, however, the Supremacy Clause means that federal law preempts contrary state law. This argument becomes circular, merely taking us back to the question of whether Congress has the power under the Commerce Clause in the first place.

Plaintiffs in this and other cases, and other opponents in the public debates, have all made novel Tenth Amendment and federalism arguments as part of their challenges to the individual mandate. These have not received the same attention afforded to the Commerce Clause argument, but they are every bit as important, and they are every bit as novel—without basis in text, history, or jurisprudence. The cases challenging the individual mandate have thus invited the courts to give new shape to the Tenth Amendment and federalism principles—a shape that reflects the opponents’ radical and ahistorical view that the Constitution enshrines libertarianism and creates a government of limited and constrained powers. The Sixth Circuit, by largely not addressing these claims, properly declined this invitation.

Steven Schwinn is an associate professor of law at The John Marshall Law School in Chicago. He teaches and writes on constitutional law, comparative constitutional law, and human rights. He was previously assistant general counsel for the Peace Corps. Schwinn also maintains a website dedicated to constitutional law.

Suggested Citation: Steven D. Schwinn, Health Care and the Attempted Redefinition of Federalism, JURIST – Forum, July 14, 2011,

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