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Marci A. Hamilton

The Case for Instituting Healthcare Reform at the State, Not Federal, Level


Thursday, December 10, 2009

Tiger Woods's mistakes serve as a reminder to us all: Power corrupts, and absolute power corrupts absolutely. The greatest golfer in the game today -- and perhaps in history -- has also been the most well-known and admired athlete in the world, and has brought golf into the public spotlight as no other person has been able to do. His skill has led to a prodigious collection of sponsors and wealth. Who, in Woods's position, would not have been tempted to cross the barriers he crossed, to believe oneself worthy of a different set of rules?

The key point here is that greatness lies in the capacity of a man or woman to resist the temptations that accompany power – and this point applies not only to the Woods case, but also to the other subject dominating the news: healthcare reform.

The Health Care Debate Shows How Far the Republican Party Has Traveled from Its Core Principles

When the Framers drafted the Constitution, they came to the Convention knowing one fundamental fact: All men are capable of abusing their power. They built that very concept into the core structure of American government, as they divided power among three federal branches, between the federal government and the states, and between church and state. Moreover, they insisted on a representative form of government, which was intended to deter the abuses of power the mob is capable of inflicting on a society.

This fundamental principle, regarding limitation of power, has been lost and suppressed in Washington, where members are now debating the shape of a comprehensive, national health care scheme. No one is reminding the Members or the people that the centralization of power increases the likelihood of abuse, or that our federalist system affords one very effective way to ensure that health care regulation and reform does not become the sole prerogative of an unchecked federal government.

Health care and insurance regulation have long been the province of the states. Yet no voice from either party is making this point with any force or eloquence. That is likely because, during the Bush Administration, the Republican Party lost sight of its most basic, unifying principles: small government, decentralized government (otherwise known as federalism), and fiscal responsibility.

Instead, religious interests converged on the Party and the Administration, demanding that their religious interests be served at the federal level on issues traditionally left to the states, such as marriage and abortion. Thus, federalism was not only forgotten but abandoned. That should come as no surprise for those who are ever cognizant that all those in power will abuse the power they hold. Once again, greatness lies in the ability to stay true to character, principle, and integrity in the face of great temptation.

Republicans Should Be Arguing for a Version of Health Care Reform – But Via the States, Not the Feds

With the healthcare debate, there is now a golden opportunity for Republicans to regain their voice and make a passionate case in favor of the core principle that not too long ago animated the party: the principle that small and decentralized government is better government.

Why is it that Washington must produce a national health care program that forces a single, controversial solution on issues like payment for abortion in private plans, and that will displace state control over health care coverage? Is there no less heavy-handed approach to health care that might well preserve our 50-state experiment in social policy, which makes it possible for us to advance more quickly, as we watch which programs succeed, and which fail, in various states? It is not enough to say, in response, that state control is the status quo, and, therefore, obviously unacceptable. There is a wide middle ground between the current state-centered system and the nationalization of health care that is being considered in Washington right now.

I am no expert on health care reform, but the truth is that no one really is, in an era when a dense, 2,000-page bill is the basis of a public debate. In such times, it is principle – not detail -- that really matters. The constitutional principle of states' rights, animated by the Framers' wise fear of centralized power, needs to re-enter the public square.

If we were to honor that principle, we would shift the health care debate profoundly -- replacing a shared assumption that nationalization is inevitable with a debate that included plenty of options that would give states real policymaking authority. The alternative is a predictable abuse of power at the federal level in a matter – health -- that intimately affects every American.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is

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