Health Care and the Constitution
George Will, baseball’s most articulate fan, hit a home run this morning. His examination of arguments for and against the constitutionality of Obamacare’s individual mandate takes his readers to fundamental constitutional questions and, in particular, to a dispute that has divided conservatives for decades — about the proper role of the courts under our Constitution. True conservatives, Will concludes, will demand a principled “judicial activism.” They will insist that courts exercise their authority to resist “the conscription of individuals, at a cost of diminished liberty, into government’s collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.”
Since the New Deal, the Supreme Court has held that Congress’s power to regulate interstate commerce amounts to a power to regulate anything that “substantially affects” that commerce — and a power to order any means that may be “necessary and proper” for that regulation. Because uninsured people who seek free emergency-room care substantially affect interstate commerce, Congress can regulate that behavior by ordering those people to buy insurance.
But the implications of that constitutional reading, Will notes, are boundless. If Congress can order you to buy insurance, why stop there? It can order you to exercise, and to eat healthy foods, etc. More disturbing still, it means that the Constitution itself and judicial review under it are no more.
Which brings us to that branch of conservatism that has long called for judicial deference to democratic decisions: “Such people,” Will writes, “believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, ‘judicial activism.’” By contrast, “more truly conservative conservatives,” Will says, see government’s primary purpose not as satisfying majority preferences but as protecting liberty — through an active judiciary, if necessary, consistent with constitutional powers and restraints.
That judicial-restraint branch of conservatism arose, understandably, from the excesses of the Warren and Burger Courts, and it was no better defended than by Judge Robert H. Bork in his magisterial book, The Tempting of America. Speaking of what he called the “Madisonian dilemma,” Bork wrote that America’s “first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Its second principle, he continued, is “that there are some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.”
Unfortunately, that gets Madison exactly backward. To be sure, the Founders, including Madison, stood for self-government — as against government by some fraction of the people, including a king. That was their first political principle. But their first moral principle — the reason they instituted government at all — was individual liberty, as the Declaration of Independence makes plain and the Constitution, with its doctrine of enumerated powers and its recognition of both enumerated and unenumerated rights, makes equally plain as a legal memorialization of the Declaration’s promise.
Indeed, the Founders did not throw off a king only to enable a majority to do what no king would ever dare. Instead, they instituted a plan whereby in “wide areas” individuals would be free simply because they were born free, while in “some areas” majorities would be entitled to rule not because they were inherently so entitled but because they were authorized to do so under a constitutional design. That gets the order right: individual liberty first; self-government second, as a means toward securing that liberty.
So where did we go wrong such that today majoritarianism is dominant and liberty is too often its target — and a supine judiciary generally defers to that regime? It came out of the Progressive Era, of course, and was finally instituted systematically by the New Deal Court, following FDR’s infamous court-packing threat. And the foundation of the constitutional inversion — from “everything that is not given is retained” to “everything that is not retained is given” — was the demise of the doctrine of enumerated powers, the idea that Congress has only those powers the people have given it, as enumerated in the document, the rest being retained by the states or the people.
And that brings us back to Congress’s commerce power. If that power were understood by the Framers and the ratifying generation as the New Deal Court read it, the Constitution would never have been ratified, and the doctrine of enumerated powers would never have been championed as the centerpiece of the document. Indeed, if Congress, under that single power, could regulate anything and everything, there would have been no need to enumerate any of Congress’s other powers. The Framers could have stopped right there.
But what is the principle of the matter? Assuming, that is, that judicial review is inherent in a written constitution that grants “The judicial Power” (Article III), and that the exercise of that power is essential if constitutional limits on governmental power are to be effected other than politically, how should courts do that in the case of the commerce power?
Unfortunately, the constitutional text alone will not answer that question; if the Framers had foreseen what would be done with the power, they probably would have written it more precisely. As with numerous other constitutional provisions, judges must go beyond the vague or indeterminate text if they’re to be faithful to the understanding of those who ratified it. Thus, constitutional structure, history, and purpose all come to the fore. Drawing on those, the principle emerges.
Senate Can Pass Health With 51 Votes, Van Hollen Says
Even if Democrats lose the special election to pick a new Massachusetts senator Tuesday, Congress may still pass health-care overhaul through a process called reconciliation, a top House Democrat said.
That procedure requires 51 votes rather than the 60 needed to prevent Republicans from blocking votes on President Barack Obama’s top legislative priorities. That supermajority is at risk as the Massachusetts race has tightened.
“Even before Massachusetts and that race was on the radar screen, we prepared for the process of using reconciliation,” Chris Van Hollen of Maryland, chairman of the Democratic Congressional Campaign Committee, said.
“Getting health-care reform passed is important,” Van Hollen said in an interview on Bloomberg Television’s “Political Capital with Al Hunt,” airing this weekend. “Reconciliation is an option.”
Should Democrats take that route, the legislation would have to be scaled back because of Senate rules.
Unions will dodge O’s health tax
Big Labor got some big love from President Obama and congressional Democrats yesterday after they agreed to exempt union workers from the whopping “Cadillac tax” on high-cost health-care plans until 2018.
The sweetheart deal, hammered out behind closed doors, will save union employees at least $60 billion over the years involved, while others won’t be as lucky — they’ll have to cough up almost $90 billion.
The 40 percent excise tax on what have come to be called “Cadillac” health-care plans would exempt collective-bargaining contracts covering government employees and other union members until Jan. 1, 2018.
Health talks in overdrive with Obama pushing
President Barack Obama and congressional Democrats stand within days if not hours of striking final deals on historic health care legislation after key labor unions won concessions and pledged their support.
“We are on the doorstep of accomplishing something that Washington has been talking about since Teddy Roosevelt was president, and that is reforming health care and health insurance here in America,” Obama told rank-and-file House Democrats on Thursday during a visit to the Capitol complex.
As he spoke, heads of the nation’s leading labor unions were announcing a deal to resolve a highly contentious dispute over Obama’s desire to tax high-cost insurance plans to help pay for the health legislation. Unions had objected strongly, saying union workers ultimately would pay the 40 percent levy, and House Democrats backed the unions. But labor bowed to the White House demands after extracting agreements that would significantly soften the blow of the tax.
AFL-CIO President Richard Trumka said that, assuming the deal and other labor priorities hold, labor will be behind the final bill.
“We will endorse it, and we’ll do that proudly,” he said.
With that, House Democrats appeared to be falling in line.
Democrats close in on healthcare agreement
Congressional Democrats closed in on a final deal on a landmark U.S. healthcare overhaul on Friday, with President Barack Obama pushing them to move quickly in marathon White House negotiating sessions.
Negotiators from the House of Representatives and Senate made “solid progress” in talks that stretched into the early morning on Friday, the White House said, and headed back for another round in the afternoon.
“We are making progress, we are establishing common ground on some of the very few issues that were different in our bills,” House Speaker Nancy Pelosi said of the negotiations.
The talks gained new urgency as polls show the overhaul is increasingly unpopular and Democrats could lose next week’s special Massachusetts election to replace the late Senator Edward Kennedy — costing them their crucial 60th Senate vote.
Democrats are hustling to finish the bill before Obama’s State of the Union speech in early February, when lawmakers hope to turn to an agenda on jobs and the economy ahead of congressional elections in November.
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