The Mirage of Constitutional Government

THE INDEPENDENT INSTITUTE
VERBATIM POST
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By Anthony Gregory

The Supreme Court is set to decide on the constitutionality of Obama’s health care reform, particularly its individual mandate—the forcing of American to buy health insurance. Opponents of the law especially worry that the precedent would mean that the federal government could essentially mandate or prohibit any commercial behavior in the guise of interstate commerce.

Ominously, a federal judge with conservative reputation, formerly a clerk to Justice Antonin Scalia, has upheld the law. Is there hope that the Supremes will disagree? All four conventionally defined conservative justices as well as Anthony Kennedy would presumably be the necessary majority to slap down this most controversial and invasive component of Obamacare.

Yet even if the mandate is struck down, it is important to realize that we basically live in a post-Constitutional United States. The problems with the health care reform go beyond the individual mandate, yet no one prominent has questioned these other elements. Most fundamentally, Congress is supposed to only legislate according to its powers outlined in Article I, Section 8, of the U.S. Constitution. Health care is nowhere mentioned. From top to bottom, this law is a constitutional atrocity.

In October 2009, then House Speaker Nancy Pelosi was asked about the constitutionality of the health care reform bill, to which she replied, “Are you serious?” Surely, no serious person would ask such a question.

Yet she is not alone in this automatically dismissive attitude. It is not unique to this party or to this issue. In the fall of 2002, when Congressman Ron Paul suggested that a war with Iraq would require a congressional declaration for it to be Constitutional, a fellow Republican told him declarations were anachronistic and a Democratic Congressman said he was being “frivolous,” Paul reports.

Surely, if the federal government can fudge the process by which it goes to war—an activity that typically throws entire societies into chaos and, in the case of Iraq, probably led to hundreds of thousands of civilian deaths, rationalized by nothing but transparent propaganda—then what is a little individual mandate going to hurt? The president can already order the death of anyone on the planet by declaring him an enemy to be liquidated—how much more invasive is a health care mandate than that? Indeed, if Congress can regulate education and energy, food and drugs, corporate practices and small businesses, gun ownership and farming practices, retirement programs and building codes, what’s one more imposition going to hurt?

The federal government has been far outside its constitutional bounds for over a century. Ever since the New Deal and especially the permanent warfare state that emerged in the last six or seven decades, there has been no real constitutional brake on any of its aspirations, except on the margins, in anomalous cases. On the other hand, upholding the individual mandate would indeed push the envelope just a bit more, as Washington would not have the precedent to force you to buy anything it wanted you to, and some of the last remnants of American economic liberty would be destroyed. If they rule to uphold Obamacare’s mandate, we have much to mourn; yet even if they get this one right, there will be little to celebrate.