Daily Archives: August 22, 2009
It’s about time:
President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?
My question? When has such a concern stopped the government in the past under either Republican or Democratic administrations or Congress?
Not that this isn’t an excellent question and I’m glad to see someone raising it. But you have to ask, would we be in the shape we’re in today if past administrations and Congress (not to mention SCOTUS) had seriously been concerned with the Constitution?
So, having had my say about that, let’s explore the point about mandated insurance coverage that David Rivkin Jr and Lee Casey try to make Their considered opinion is contained in a fairly short paragraph, and the answer is “no”:
The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
Rivkin and Casey support their conclusion with case law and precedent which they claim would preclude a constitutional basis for an individual mandate in either the most abused clause of the Constitution – the commerce clause – or within the power to tax. Given that, they say:
This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a “benefit” that some part of the population would not choose to eschew.
Taxation as a means (such as being fined by the IRS if you don’t have health insurance) of enforcing the mandate is a Constitutional no-go as well:
Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision.
Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.
Sounds good and I’d love to believe it – but looking around, you have to wonder how we got to where we are today if we’re as committed to the limits imposed by the Constitution as these two believe. If you listen to them, this mandate business is dead. No can do. But we’ve watched our legislators and the executive branch – on both sides – consistently find ways around the obstacles (and case law) these two lay out there.
I want to believe it, but I’m forced by reality to say, “I’ll believe it when I see it”.
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When this is the best they can do (and they think what they’ve done is funny).
And for some reason, linking to the actual post they cite seems a little beyond them (read the comments – the commenters are no brighter than the blogger – they’re all talking about the garage sale post). I think that may have something to do with the grade level of the “humor”.
BTW, in case you’re in the dark, the guy pictured with me there is Kevin Whalen (the pic was taken at the ’07 Milbloggers Conference). That actually makes the title somewhat funny, but ironically the Sadly, No! kids appear unaware of that (be sure to read the explanation of the “joke” to be found in the title – uh, yeah).
It’s pretty sad when a site supposedly known for its biting humor bites it that badly.
Here’s hoping they don’t “wee-wee” up their next attempt as badly as they did this one.
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I got a call yesterday at about 3pm from Keesler Air Force Base, home of the Hurricane Hunters.
“Hey, can you get to Andrews AFB by Sunday morning? If so we’ll fly you through Hurricane Bill!”
Heck yeah. So I go about doing all the things you have to do to get ready for such an adventure and at about 10am this morning I take off toward DC. About 30 min into the drive, my Airforce PAO contact on the scene calls me to makes sure I’ve got the mission time and we talk about what to take on the flight. She’s talking a flight of 11 to 14 hours. I’m pretty much covered on all the gear I need, but she suggests I pick up some food to take with me since there will be no in-flight meals. OK, I can handle that.
So I continue on toward Andrews when I get a second call.
“I hate to have to call and tell you this, but the National Hurricane Center has canceled tomorrow’s tasking and the mission is scrubbed”.
Ah well, Bill was just a Cat 2 storm and apparently losing a little bit of steam. I made ’em promise me they’d keep me at the top of the list for the next storm. I definitely still want to join that rather exclusive club of people who’ve flown through the eye of a hurricane – on purpose.
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