Politically expedient, constitutionally deficient

Perhaps I should have waited a day.  Several great new pieces hit the presses today.  This is one of the more fascinating – not to mention high stakes – poli sci happenings in a long time.

When one considers the recent facts come to light – Obamacare will cost at least double what was promised and over two-thirds of the nation wants it repealed – it’s hard to disagree with Dr. Krauthammer’s assessment:

Rarely has one law so exemplified the worst of the Leviathan state — grotesque cost, questionable constitutionality, and arbitrary bureaucratic coerciveness. Little wonder the president barely mentioned it in his latest State of the Union address. He wants to be reelected.

The admin was slow to grasp that they just may have over-reached in a way that sets back the larger progressive cause.  Their legislative strategy was “politically expedient but constitutionally deficient.”  From Liberty and Obamacare in today’s WSJ:

As for respect of the democratic process, there are plenty of ordinary, perfectly constitutional ways the Obama Democrats could have reformed health care and achieved the same result. They could have raised taxes to fund national health care or to make direct cross-subsidy transfers to sick people. They chose not to avail themselves of those options because they’d be politically unpopular. The individual mandate was in that sense a deliberate evasion of the accountability the Constitution’s separation of powers is meant to protect.

James Taranto’s Best of the Web reiterates one of the points I made yesterday:  As long as 4 Justices – in this case the liberals – stay united, any verdict can be described as “partisan” or “divided.”  It sounds like a form of blackmail:  “Agree with us or we’ll hold out and damage the Court’s reputation.  The press will blame you anyway.”  Is there not one Dem-appointed Justice, or liberal anywhere, who believes this proposed extension of federal power is a threatNot one?  Really?  How about in the event of a Republican-controlled government issuing the regulatory edicts?  If you’re afraid of Rick Santorum you should be afraid of Obamacare.

Yesterday I wrote that I believed institutional prerogatives would quietly factor into SCOTUS deliberations.  (A little chin music for O-care?)  The behavior of the administration continues to puzzle me, it seems so institutionally tin eared and inept.  Publicly embarrassing Justices you’ve invited to your SOTU was a blunder, as was manhandling Catholic institutions when 6 of the Justices are themselves Catholic. And now, community organizer street theater?!  More from Liberty and Obamacare in today’s WSJ:

Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

Consider a White House strategy memo that leaked this month, revealing that senior Administration officials are coordinating with liberal advocacy groups to pressure the Court. “Frame the Supreme Court oral arguments in terms of real people and real benefits that would be lost if the law were overturned,” the memo notes, rather than “the individual responsibility piece of the law and the legal precedence [sic].” Those nonpolitical details are merely what “lawyers will be talking about.”

The White House is even organizing demonstrations during the proceedings, including a “‘prayerful witness’ encircling the Supreme Court.” The executive branch is supposed to speak to the Court through the Solicitor General, not agitprop and crowds in the streets.

Later from the same op-ed, on the substance of the issue:

The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy…

A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

The best the government can do is to claim that health care is unique. It is not… The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else…

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Today’s WaEx also has a good series of short pieces:

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More from Taranto’s Best of the Web:

For one thing, the justices who will decide the case surely understand that they will be making new law if they uphold the individual mandate as surely as if they strike it down. Greenhouse unwittingly acknowledges this point even as she tries to deny it:

If [as the court held in Gonzales v. Raich in 2005] the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

This is the slippery slope as an affirmative argument. Undeniably the court has – wrongly, in the view of some observers, including this columnist–interpreted the Commerce Clause as granting vast powers to Congress. In Greenhouse’s mind, there is no distinction between vast and unlimited. As far as she’s concerned, the Congress has the authority to “basically do whatever it wants.” Is the Roberts court really prepared to endorse such a radical principle? Color us skeptical.

One reason for our skepticism is political. Wickard was one of a series of New Deal-era cases in which the Supreme Court, under pressure from a popular president at a time of national crisis, greatly (though not infinitely) expanded Congress’s power under the Commerce Clause. Raich, which currently defines the outer bound of congressional commerce power, involved the enforcement of federal drug laws, which have wide (if somewhat dwindling) popular support.

By contrast, ObamaCare is widely hated. Greenhouse cites a recent Kaiser Family Foundation survey finding that a majority of Americans would like to see the court overturn the individual mandate. A Gallup poll put the figure at 72%. One theory behind the speculation that the justices will uphold ObamaCare is that they wish to avoid the damage to their authority that might come from a “partisan” ruling à la Bush v. Gore. (This assumes, correctly in our view, that a ruling against ObamaCare will be 5-4, with all Democratic appointees in dissent.)

But if the court is looking to protect its authority among the general public as opposed to within the liberal elite, it would make sense to strike down a law that has always been unpopular.

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One Response to Politically expedient, constitutionally deficient

  1. Paul Marks says:

    Of course Obamacare costs twice (and more than twice) what they said it would.

    Just as, of course its mandates and other regulations will finish off the process (started decades ago – with endless regulations and subsidy programs, subidy programs that have the same effect on health care costs that tuition subsidies have on higher education costs) of making real independent health care out of the reach (the price reach) of most people.

    This is exactly what was INTENDED.

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