By Timothy Bonis
Although three in four doctors support scrapping state medical boards in favor of a single federal license, such sweeping reform is likely far off. It is not just state boards’ political obstructionism standing in the way. Basic constitutional federalism limits Congress’s ability to assume powers traditionally held by the states, leaving medical licensure (a state matter since its 19th-century inception) difficult to federalize.
This post will explore potential constitutional arguments for and against federal licensure, investigate the constitutionality of more moderate legislative approaches, and speculate on how the late Roberts Court might respond to reform attempts.
A potential constitutional basis for federal licensure could hinge on the Commerce Clause in Article I, which grants Congress the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Some scholars have interpreted this to mean that the federal government has the right under the Commerce Clause to regulate all medical licensure. Michael Young cites the Court’s 1995 ruling in United States v. Lopez (where the Court actually struck down a federal law as a Commerce Clause overreach but acknowledged the federal government’s purview over intrastate activities that have a substantial effect on interstate commerce) as evidence that all medical licensure could fall under Congress’s domain. He argues that because health care is a multi-trillion-dollar industry with cross-border ramifications, and one where the government is the largest spender, both the Commerce Clause and constitutional spending power give federal authorities a blank check to administer medical accreditation.
Writing about telehealth, Amar Gupta takes a similar stance, arguing not only that the federal government can regulate telehealth accreditation, but that current licensure barriers are unconstitutional. Gupta cites the Dormant Commerce Clause doctrine, a court-invented principle which allows the federal government to strike down state laws deemed excessively burdensome to interstate trade. Invoking the landmark 1824 case Gibbons v. Ogden (where the Court held that boat operators crossing state lines could be regulated only by the federal government), he suggests restrictions on telemedicine licensure are tantamount to unlawful state barriers on an obviously interstate industry.
Lindsey Goehring refrains from arguing all licenses fall within the purview of the federal domain, but maintains that telemedicine would qualify as interstate commerce. She argues that because “telemedicine will likely take medical practice across state lines… it would fall under the umbrella of interstate commerce, [and] the federal government would have the authority to regulate the practice.”
Tenth Amendment and “Police Power”
On the other hand, the Tenth Amendment’s “Police Power” provision, which enshrines authority over certain domains to the states, may provide a constitutional argument against federal licensure. Consider the following Supreme Court cases, which both dealt directly with medical accreditation and both upheld state control of physician licensing as a power reserved under the Tenth Amendment.
Dent v. West Virginia (1889) maintained West Virginia’s power to license its physicians. The Court reinforced that ruling in Hawker v New York (1898), where Justice Brewer wrote in his majority opinion that “it cannot be doubted that the legislature has authority, in the exercise of its general police power, to…bar from admission to [the medical profession] dishonorable men,” giving states not only the power to license physicians but broad discretion in the process. By designating medical licensure as a Tenth Amendment police power for the states, the Court theoretically grouped it with regulating intrastate commerce or setting marriage policy as a domain over which the Federal Government has no authority. Indeed, Goehring maintains that a traditional interpretation of the Tenth Amendment precludes the federal government from regulating aspects of telemedicine that are purely in-state.
Marino et al., however, contend that these rulings have little import today, as more recent jurisprudence gives the federal government power to regulate health care. As proof, they cite three cases: the Court’s 2005 ruling in Gonzales v. Raich (where the Court bent the Tenth Amendment to prohibit marijuana cultivation that was legal in California), the similar 2006 decision Gonzales v. Oregon, and NFIB v. Sebelius (2012), which upheld the Affordable Care Act while declaring the individual mandate a violation of the Commerce Clause. They elevate these cases as proof of general liberalism in the Court’s interpretations of federal power to regulate health and the obsoleteness of Dent and Hawker.
Alternative Legislative Approaches
Most serious attempts at reform call not for federal control of telemedicine licensure or medical accreditation (a politically unlikely outcome), but for federal pressure applied to states to embrace licensure reciprocity or portability. Almost all scholars see such measures as a legitimate exercise of constitutional power.
Most such proposals rely on conditional spending, especially of Medicare funds. Threatening to withhold financial support is how the federal government passed the Megan’s Law with muted constitutional challenges. Evaluating the possibility of conditional spending in the health space, Eloise Paschoff writes that “the scope of Congress’s power under the Spending Clause has remained extremely broad [after NFIB].” Under that ruling, “[Congress] may use its spending power to create incentives for states to accord with federal policies,” unless the “pressure turns into compulsion.”
What Would the “Thomas Court” Say?
Defenders of the notion that the Court would dismiss a federalist challenge to national medical licensure often cite the 1995 United States v. Lopez case, where the Court upheld federal purview over seemingly intrastate affairs that have cross-border effects. Nevertheless, the Court has changed since then, and the justices’ voting patterns suggest they may be more skeptical of similar erosion of state power today. Indeed, a young Justice Thomas wrote in his concurring opinion to Lopez “at an appropriate juncture, I think we must modify our Commerce Clause jurisprudence,” describing the current doctrine as a “blank check” for growing federal power.
Equally shaky is Marino et al.’s argument that the Court’s tolerance of federal intervention in the health care industry “uphold[s] the authority of Congress to regulate health,” thus enabling Congressional intervention in licensure. None of the cases cited by the authors deal with telemedicine or licensing; interpreting Raich, NFIB, or Oregon as giving Congress power to regulate telemedicine licensing presumes that a ruling about controlled substances can inform policy around accreditation merely because both are related to the concept of “health,” an argument that would be especially tenuous among today’s justices.
Indeed, the Court now features more Commerce Clause conservatives than when Marino et al. published. Back in 2004, Justice Thomas was one of three dissenters in Raich. But Chief Justice Roberts joined Justices Thomas and Scalia in dissent against Oregon, leaving only the Democratic appointees and the long-departed swing justices O’Connor and Kennedy in support of the kind of Commerce Clause interpretation needed for radical federal involvement in medical licensure. In NFIB, then-new Justice Alito also sided with limiting Commerce Clause power. With Justices Thomas, Alito, and Roberts advocating conservative Commerce Clause doctrine in health, it seems unlikely today’s Court would uphold revolutionary centralization in medical licensure.
A constitutional basis may exist for federal medical licensure, especially of telehealth practice. Nevertheless, proposals more radical than conditional spending risk fatal legal headwinds and a skeptical response by the Supreme Court. Through uniform laws and interstate compacts, state legislatures might be better positioned than Congress to lead the charge in modernizing America’s medical accreditation regime.