March 28, 2010 [LINK / comment]
Having strayed farther and farther from the blogospheric orbit in recent months, an inevitable consequence of using Facebook, I suppose, I haven't been keeping up with the opinions of some of the cyber-pundits whom I most respect. Military blogger Donald Sensing doesn't often wade into political arguments, but his reaction to the passage of Obamacare is unequivocal: "We are now subjects, not citizens"
Reliably right-wing Patrick Ruffini dared to suggest that Obamacare passed because "Republicans did not present a compelling alternative story of what was wrong with the health care system, or how they would fix it." I have made that argument many times in the past, which irritates other Republicans, I have found. Well, what do expect from the party of the Bush administration, which enacted the Medicare Part D entitlement? Ruffini writes, "On health care, I have no idea what our basic guiding principle is. Seriously, I don't." Me neither.
Doug Mataconis pokes fun at the President for having to "sell" the legislative package to the American people after it's already been passed. (Is that how democracy is supposed to work?) He points to the deep divide in public opinion, which probably won't change any time soon, since the taxes have already gone into effect while the "benefits" don't kick in until 2014. It's going to be a very bumpy ride, folks...
In the old print media, meanwhile, New York Times columnist David Brooks "why I'm no longer spiritually attached to the Democratic Party." The bill is a universal security cushion that undermines the incentive to create wealth. (Translation: It would make us more like the stagnant economies of Europe.) Brooks points to demographic trends (an aging population) and warns of an impending crisis: "The task ahead is to save this country from stagnation and fiscal ruin." Unfortunately, he says, the Democrats are simply not prepared to address this problem, and neither are the Republicans. Indeed.
I don't pretend to be an expert in constitutional law, but I'm familiar with the landmark cases pertaining to Federal-state relations that were decided by the Supreme Court. Based on what I have read, I am convinced that the individual mandate far exceeds the authority granted to Congress under the Constitution, and I agree with the state attorneys general (including Ken Cuccinelli of Virginia) who are filing a lawsuit to have the new law overturned. Until I have read more on the matter, however, I will keep an open mind.
That being said, I am constantly taken aback by the scathingly dismissive tone expressed by many people over this issue, including TV pundits as well as policy wonks. On CNN this afternoon, business correspondent Ali Velshi almost giggled as he raised the issue, which to him is evidently not an issue at all. Many of these "experts" mistakenly focus on the merits of the health care law itself, when the focus should be on the constraints on government power imposed by the Constitution. For many people, unfortunately, that is a hard concept to fathom.
At salon.com (hat tip to Andrew Murphy), Paul J. O'Rourke cites a historical precedent for Obamacare. In 1798, he writes, President John Adams signed into law a congressionally-passed mandate under which privately employed sailors were required to purchase healthcare insurance. The sarcastic tone of the writer makes me think it's a satirical piece (is it P.J. O'Rourke??), but I guess we'll have to look into this. If the historical account is true, the obvious rejoinder is that it applied to a very select group of persons whose work had a direct connection to the national well-being, like air traffic controllers or firemen. I don't think that's much of a precedent for mandatory, universal health insurance.
In contrast to most other legal experts, Judge Andrew Napolitano believes the Supreme Court will strike down the Democrats' health care law. He bases this on the notion that the federal government would be "commandeering" the state legislatures, i.e., forcing them to revamp their regulations to conform to national standards. Past Supreme Courts have ruled against such actions. He went on to warn that the U.S. risks becoming "a fascist country," which he defines as "private ownership, but government control." See newsmax.com; hat tip to Doug Mataconis.
As one of the members of the Volokh Conspiracy, constitutional scholar Randy Barnett took the opportunity to promote his proposed "Federalism Restoration Amendment":
Federalism Restoration Amendment
The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity's economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.
I am currently reading Prof. Barnett's book, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2004), which I borrowed from James Madison University's Carrier Library. (How appropriate -- James Madison is regarded as the "Father of the Constitution"!) Prof. Barnett had an op-ed column in last Sunday's Outlook section, and held an online discussion with Washington Post readers on Monday.
But how could such an amendment possibly be passed by the necessary two-thirds vote in Congress, where the Democrats still hold a strong majority? Easy, by holding constitutional conventions in all fifty states, as author (and Facebook friend) Kevin Gutzman urges. Some say that would be a recipe for chaos, and I admit there are risks, but the status quo is hopeless, as the country grinds inexorably toward statism and ungovernability.