I mentioned in passing that Governor Perry has decided that since his battle against the stimulus package was so effective, he needed to turn to health care reform, which he planned to oppose on 10th Amendment grounds. No, I have no idea what that means, either. Jack Balkin, who knows a little something about constitutional law, tries to figure it out.
Perry’s assertion raises several interesting questions. The first is how, if at all, Texas would refuse to participate. I assume that Texas could not prevent Texas residents from purchasing a national public insurance option. It would not and could not prevent federal law enforcement officials from enforcing federal regulations of private insurers who operate within the state of Texas. Similarly, Texas state officials would not try to close down federal government office buildings in Texas where the health care program is being administered.
So what exactly is Perry threatening to do? There is one possibility that I could think of (there may be several others as well): Perhaps Perry is saying that if the plan expands Medicaid for poor people, he would stop participating in the Medicaid program. Currently all states participate in this federal/state cooperative program. Medicaid currently provides health insurance program for low-income parents (mostly mothers) and children, a long-term care program for the elderly, and funds for services to people with disabilities.
Since Medicaid is a cooperative venture, any state can back out any time it wants. All Perry has to do is take the political heat, which would presumably be pretty intense, given the fact that a large number of mothers, elderly persons and disabled persons in Texas make use of Medicaid programs.
Perhaps more interesting is Perry’s theory of why expanded health care programs would be unconstitutional. I can think of two possibilities. Presumably the federal power to create such a program comes from the General Welfare Clause (Article I, section 8, clause 1), which gives the federal government the power to raise taxes and spend money for the general welfare. It’s hard to see how the proposed health care program violates the Constitution under existing doctrine.
Perry might claim that no state can willingly consent to participate in federal programs of the type contemplated. But that argument would probably make many other state cooperative ventures unconstitutional, including Social Security and Medicare.
Second, Perry might argue that although the federal government can spend money on some social welfare programs, after a certain point, federal expenditures become so intrusive that they dominate the regulatory playing field, effectively preventing states from creating their own independent programs and therefore this violates the Tenth Amendment. This argument seems a bit of a stretch, but if we took it seriously, it would threaten the constitutionality of a lot of federal programs, including federal grants that Texas depends on and that Texas citizens desperately need. Perry has been more than happy to take federal money for any number of federal health care programs in the past. It is not clear whether he has had a change of heart about their constitutionality as well.
I kind of doubt Perry has put this much actual thought into the legal implications of his words. It is, as always, him playing to the cheap seats and hoping for the best. Balkin thinks that if Perry actually followed through on this nonsense he’d suffer for it politically. That’s probably true, at least if it comes to a head before next November and Perry is the Republican candidate for Governor against a reasonably well-financed Democrat. But all Perry cares about right now is making it through the primary, and this kind of stuff is catnip to the voters he actually cares about. What’s Kay gonna say? (Answer: “Me, too!” Way to be a leader, Kay!)
Needless to say, all this is once again putting Texas in the media spotlight. Here’s Rachel Maddow in MSNBC:
I’d dispute Lou Dubose’s claim that KBH will run a smart campaign against Perry – there’s no evidence as yet to back that up – but otherwise it’s spot on. I really hope it is darkest just before the dawn because it’s pretty damn dark down here right now. Thanks to EoW for the Maddow link.