Pat Allen: The View from Right Field

The Constitutionality of Obamacare: Liberals Still Don’t Get It

In my post on Sunday, I talked about how, prior to last week and the arguments before the Supreme Court on the constitutionality of Obamacare, liberals just didn’t understand that there are real constitutional concerns about Obamacare.  And after reading Ezra Klein’s column in The Washington Post (here), it is obvious that at least some liberals still don’t understand.*

You can tell that Mr. Klein doesn’t understand from his first sentence: 

“Of all the arguments being waged over the Affordable Care Act … the one dominating the Supreme Court last week is perhaps the most conceptually trivial.”

Mr. Klein goes on to list three ways, other than Obamacare, that health care could have been provided.  Among them are a government-provided, single-payer plan a la Medicare and Representative Paul Ryan’s (R-WI) tax credits for buying private health insurance. 

Mr. Klein says that increasing taxes and providing Medicare-for-all would clearly be okay under the Constitution, and I think he is probably right.  He says the same for Paul Ryan’s tax credit plan, which he also says “is essentially indistinguishable from the mandate [in Obamacare].”  He quotes William Gale of the Tax Policy Center:

“‘The economics of saying you get a credit if you buy insurance and you don’t if you don’t [Rep. Ryan’s plan] are not different than the economics of saying you pay a penalty if you don’t buy insurance and you don’t if you do [Obamacare].’”

But what Mr. Klein misses is that the way things are done matters.  Process counts.  Conservatives believe the Constitution makes a difference.  But Mr. Klein doesn’t understand:

“Of course, this battle isn’t really about the constitutionality of the individual mandate. …

The real fight is over whether the Affordable Care Act should exist at all. … The argument against the individual mandate is a pretext to overturn Obamacare.”

Except it’s not.  Mr. Klein argues that the fact the constitutionality of the mandate was not raised in Massachusetts, when Massachusetts passed a state mandate to buy health insurance in the mid-2000s, shows that constitutionality is not the real problem with the mandate.  Actually, his comments show how badly he is missing the point.  Under our federal system, there is no federal constitutional problem with an individual state passing a mandate to buy health insurance.  States have the authority to do that under the U.S. Constitution.**  It’s the federal government thatmay not.  Just because something is unconstitutional when the federal government does it, doesn’t mean it is unconstitutional when a state government does it.

What Mr. Klein apparently doesn’t understand, and what so many liberals miss about conservatives, is that, for us, process matters.  Proper procedure counts.  We believe that the Constitution is not just a limit on what the government does, but it is also a limit on how the government does what it does.  Many liberals don’t get that, but it is critical to conservatives.  And it is a big difference between conservatives and liberals.***

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* Even though Mr. Klein’s column was published on Saturday, I did not see it until Monday,

** Whether they have it under their own constitution is a separate question, but it is not one being raised here.

*** Peter Suderman at Reason.com gives one possible reason that many liberals “don’t get it”.  I don’t know if it is true, but it is an interesting possibility:

“What can explain liberals’ widespread failure to anticipate the Court’s wariness of the mandate? Research conducted by University of Virginia psychologist Jonathan Haidt suggests one possible answer: Liberals just aren’t as good as conservatives and libertarians at understanding how their opponents think. Haidt helped conduct research that asked respondents to fill out questionnaires about political narratives—first responding based on their own beliefs, but then responding as if trying to mimic the beliefs of their political opponents. ‘The results,’ he writes in the May issue of Reason, ‘were clear and consistent.’ Moderates and conservatives were the most able to think like their liberal political opponents. ‘Liberals,’ he reports, ‘were the least accurate, especially those who describe themselves as “very liberal.”’”

The Constitutionality of Obamacare: Liberals Get the Surprise of Their Life

I don’t know how the United States Supreme Court is going to decide on the constitutionality of Obamacare.  Nobody does.  Questions from the bench are sometimes just that.  Questions.  And questions are not always an indication of how a justice will decide.

In any case, what I wanted to comment on was not what I think the Court will, or should, decide.  What I wanted to comment on was the reaction of liberals to the concept that there could actually be a real argument on the constitutionality of the law.  They can’t believe it.  It does not fit with anything they believe.  They understand that the Bill of Rights limits what the government can do.  For example, laws restricting a woman’s right to choose (i.e., abortion) are unconstitutional.  Many liberals believe that capital punishment violates the Eighth Amendment’s prohibition on cruel and unusual punishment and that laws outlawing same-sex marriage violate various equal protection provisions.

But the idea that there is any limit on the federal government’s power in other areas doesn’t fit.  Liberals find it absolutely incomprehensible that the federal government can’t do whatever it wants and however it wants to do it.  And in some ways I can understand their confusion.  After all, if the federal government can regulate a farmer’s ability to grow wheat for his own personal use because it affects interstate commerce, what limits are there?  (See here.)

Liberals have come to believe that the federal government is there to solve our problems, all of our problems.  (A fair number of conservatives seem to believe that, too, at least at times.)  Poor third grade test scores?  We need No Child Left Behind.  Drunk driving?  Cut highway funds to states that won’t lower their maximum blood alcohol leve.  Shootings in school?  Pass a federal law.*

In the articles they have been writing, liberals have seemed dumbstruck by the idea that there may actually be limits on what the federal government can do or the way it can do it.**  They cannot comprehend that some people actually believe that different levels of government have different powers and that the Constitution has a relevance for today (except for the limited matters mentioned above).

But James Madison explained it in the Federalist Papers:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.”

I agree with Mr. Madison that the federal system set out in our Constitution works to prevent "[t]he accumulation of all powers "in one place, which is “the very definition of tyranny.”  But also, by dividing up the powers and duties of the various governments, the Constitution provides better government by ensuring that one level of government does not try to do more than it can and that what it does have responsibility for are those things which it can do best.

As an aside, liberals (and some conservatives) also have problems with the idea that different branches of government have different jobs.  For example, I have often heard liberals (and some conservatives) say that the courts need to deal with a particular problem because Congress hasn’t or won’t act.  No!  The courts are not an alternative legislature that you go to when you don’t get the answer you want from the first one.  Courts and legislatures have different jobs, and they should do their own job and not the job of the other branch.  If Congress won’t address a problem, that doesn’t mean the courts should.  Maybe it means that the people, through Congress, don’t think the problem needs to be addressed or maybe they are okay with the way things are.***

But back to liberals and the constitutionality of Obamacare.  Clearly, liberals never understood that there was, or even could be, a serious constitutional challenge to Obamacare.  It wasn’t within their philosophy, and since they don’t understand conservative philosophy (and many of them don’t think conservatives have a philosophy other than selfishness and not caring for other people), they missed it entirely.  Until last week.  When they got the shock of their lives.

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* This last one actually was overturned by the U.S. Supreme Court, on the grounds it was not within Congress’s power to regulate interstate commerce.  See United States v. Lopez.

** Among many others, see here and here.  There are ways the Obama administration could have set up a national health care system that would not have been susceptible to challenge.  (Among others, see here.)  But the fact that there was a way it could have been done without challenge, doesn’t mean that the way they chose can’t be challenged.

*** Obviously, there are problems that the courts need to address because there are questions that rightfully do belong to the courts.  Plessey v. Ferguson needed to be overturned, and Brown v. Board of Education needed to be decided.  But do courts really need to decide the proper way to fund schools and how much money the schools should have – because the legislature isn’t doing it right?  (See here.)

The Constitutionality of Obamacare

On Monday the Supreme Court will be taking up the constitutionality of President Obama’s healthcare plan, and they are going to do it with three days of arguments. The Court’s providing for three days of arguments shows the seriousness with which the Supreme Court will be giving the issue. And it looks good to the public: It is the Supreme Court telling the people that they understand the importance of the issue and they are proceeding appropriately. Nobody knows how it will turn out, but perhaps the best guess I have seen is a 6-3 or 7-2 vote to uphold the law, with Chief Justice Roberts writing the opinion himself in order to keep the opinion as narrow as possible, so it only applies to healthcare and does not become the basis for further expansions of federal power.

As for my thoughts, I have written on the subject twice before. The first time was on April 8, 2010, when the idea that there could be a real constitutional challenge to the idea was not taken seriously. I wrote again ten months later, on February 7, 2011, by which time it had become clear that there was a real, substantive challenge to the law and that it might not get upheld. Looking back on those two articles, I don’t think I have much more to say on the constitutionality of the law. At this point all we can do is wait for the lawyers to argue and the Court to decide.

What Would Voltaire Say About Forcing Religious Institutions to Violate Their Principles

Voltaire famously said, “I do not agree with what you have to say, but I'll defend to the death your right to say it.”

Trying to fit this idea into the current controversy as to whether religious institutions should be forced to include, in health insurance plans they provide to their employees, coverage(s) which are contrary to their religious beliefs, I came up with this:

“I do not agree with your religious principals, but I will defend your right* to not provide a health insurance plan that violates your religious principles.”

Unfortunately, according to a survey by the Pew Research Center earlier this month, 44% of Americans who have heard about the issue, said that, even if a religious institution objects to contraception on the basis of its religious principles, it should still have to provide contraception in its health plan.  I guess we don’t have many Voltaires today.  But at least we have the First Amendment.

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* “To the death” probably doesn’t fit today.

The Tea Party – A Follow-Up

On Sunday, I wrote a short post on “Newt Gingrich and the Tea Party”.  The main point of that post was that the people liking what they hear from Mr. Gingrich on the campaign trail today should  be sure to look at the whole package, and Mr. Gingrich’s whole career, before signing up to support him.

What I want to make sure of, however, is that nobody takes my post to be a criticism of the people in the Tea Party (or Tea Parties).  The Tea Partiers have been good for American politics.  The rebirth of the idea of the Constitution as a limit on government power owes a lot to the Tea Party.  Conservatives (some of us) have been pushing this idea for years, but for a long time, too many people saw the Constitution as little more than the Miranda warning and keeping prayer out of schools.  It was Tea Partiers who really helped restore the idea of the Constitution to its proper place as the people’s check on the power of government.

As a conservative who believes in the importance of process and procedure, how could I not appreciate people who talk about the Constitution as a principled limitation on what government can do – and who mean it? 

President Obama’s “Recess” Appointments – Even Though the Senate Isn’t In Recess

Last week President Obama made four recess appointments, three to the National Labor Relations Board and one to head the Consumer Financial Protection Bureau.  The Constitution clearly allows a President to make “recess appointments”.  Section 2 of Article II says:

“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

The problem with President Obama’s recess appointments was that the Senate wasn’t in recess.  Senate Republicans, picking up on an idea Harry Reid started in 2007 to stop President Bush from making recess appointments, have forced the Senate to hold pro forma sessions instead of going into recess.  But President Obama didn’t care.  He decided on his own that the Senate was “functionally in recess”, so he went ahead with his appointments.

Which is where Clarence Page’s Op-Ed article in Wednesday’s Chicago Tribune comes in.  Mr. Page agrees there is a constitutional question here, though the way he describes it makes one doubt he considers it all that serious:

“It's about such heavy-duty constitutional questions as how far an embattled president can go to perform his job despite cynical lawmakers who leave no tricks up their sleeves in order to stop him.”

Mr. Page goes on to talk a lot about the policy questions involved and why President Obama is right and the Republicans are wrong.  But at the end of his article, Mr. Page sort of returns to the constitutional question:

“Either way, the Cordray fight [i.e., the fight to appoint Richard Cordray as director of the Consumer Financial Protection Bureau] joins other recent events in signaling a less conciliatory Barack Obama. He is framing this battle as a fight against obstructionist Republicans who stage phony sessions to defend big banks against middle-class Americans. Even if Obama were to lose in the Supreme Court, he stands an excellent chance with the court of public opinion.”

What Mr. Page is missing here is the importance of process.  Mr. Page sees President Obama’s policies as right and those of his opponents as “obstructionist”.  But the key to our democracy, and to the protection of our democracy, is not getting policy right but following proper and agreed-upon processes and procedures. 

Our liberties are not protected by those in Washington making the right choices on policies. (Fortunately.)  Our liberties are protected by making sure those who govern us follow the processes and procedures that have been established for running our government.  When those in power decide that their policies are important than our laws and Constitution, i.e., when they decide the ends are more important than the means, our democracy is endangered.

And I really wonder if Mr. Page has thought through the implications of his last sentence:

“Even if Obama were to lose in the Supreme Court, he stands an excellent chance with the court of public opinion.”

Does Mr. Page really think the court of public opinion is more important than the Supreme Court?  There have been many times when the court of public opinion wouldn’t have given us much of a First Amendment.  Protections for people accused of a crime wouldn’t do well in the court of public opinion, either.  And in 1954 I doubt the court of public opinion would have given us a unanimous decision in Brown v. Board of Education, assuming Brown would have won at all.

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Update (1/12/12 8:15 am):  Fixed a typo in the ninth paragraph.

Update (1/21/12 4:45 pm): A shortened version of this post appeared as a letter to the editor in "Voice of the People" in today's Chicago Tribune.  See here.

The Constitutionality of the Obama Health Care Plan – A Follow-Up

Last April I wrote about whether the Obama health care plan, and especially the requirement that people must buy health insurance, i.e., the individual mandate, is constitutional.  I am not going to repeat what I said then.  I will say, however, that the question of whether the plan, and especially the individual mandate, is constitutional is getting a lot more serious attention than I expected.  A year ago, not many people thought about it, and the supporters of President Obama’s plan thought that even asking the question was absurd.  But with two U.S. federal district courts having found that parts of law are unconstitutional, out of the four that have looked at the issue, the question does not seem so absurd anymore.

But the interesting question is something that I mentioned in passing last April:  Instead of all of the arguments about the constitutionality of the individual mandate, what if the government had just raised taxes and started providing health care to everybody, like it does with Medicare for those over 65?  Would there be a constitutional argument about that?  Probably not.  After all, what is the difference between taxing people to provide Social Security or Medicare for older Americans and taxing people to provide medical care for everybody?  There would be lots of debate on whether doing this would be a good move, but I doubt there would be any serious constitutional argument.

So why didn’t the Administration do that?  There are probably several reasons.  First, as I said above, I don’t think the Democrats ever thought the constitutional argument about Obamacare was serious – or any kind of a real concern.  Their general view seems to be that the federal government can do whatever it wants in terms of economic rules and regulations, and that the only constitutional limits on the federal government are certain Bill of Rights protections for people charged with crimes.*  After all, liberals don’t even think that the First Amendment should prevent the federal government from imposing limits on political speech during election campaigns, as long as what the federal government is doing will make the process fairer and more equal, so why should Obamacare be a problem?

Second, I wonder if such a bill, i.e., extending Medicare to everybody, would have passed.  One of the key arguments, especially early on, for Obamacare, was that it would provide coverage for people who didn’t have it, but it would not affect people who already had health coverage and wanted to keep what they had.  Remember President Obama saying that, under his plan, if you liked the health insurance you had, you would be able to keep it.  Obviously, nobody, including the President, is saying that anymore, because it has become fairly clear that it is not true, but it was part of the effort to sell Obamacare back before people knew how the plan was really going to work.  If the Administration had admitted, from the beginning, all of the changes that the plan was going to make to people’s existing health insurance, the public uproar would have been greater and sooner, and it might not have passed.

Third, the ultimate goal was to pass something, anything.  The idea was that, once it was passed, it would be impossible to repeal it.  Problems could be fixed later.  The point was to get it passed and then worry about the details.  This became especially true once Scott Brown was elected in Massachusetts.  It didn’t matter how the plan worked, or if it would work.  The goal was to pass something and then fix it over the next three and one-half years.

What President Obama and his supporters did not count on was that the financial bailouts, the huge stimulus package, and the health care legislation itself – including the process by the bill was passed – wound up creating a backlash that generated renewed interest in how limits could be put on the federal government.  Which led people to the Constitution. 

This was unexpected by liberals and Democrats because the idea of limiting what the federal government can do (except in those areas I mentioned above) is alien to them.  In the view of most liberals and Democrats, if the goal is good, if the motive is good, then why should anyone object to what the federal government wants to do?  Not everybody agrees with such a view, and that disagreement lies at the heart of the debate over the constitutionality of certain parts of Obamacare as it was passed. 

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* And limits on what the federal government can do in terms of national security, of course.

Gay Marriage: Courts Try to Decide Yet Another Issue for Us

Last week a federal district court judge in California overturned the ban on same-sex marriages that California voters approved in 2008. The court held that the amendment to the California constitution violated federal constitutional guarantees to equal protection and due process when it denied the right of gays and lesbians to be married.*

Dahlia Lithwick of Slate.com said this about the ruling:

"But for all the lofty language about freedom and morality, nobody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice.

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work."

Obviously, Ms. Lithwick is impressed with the decision, but when I read these kinds of things about the opinion, I think to myself: Isn’t this what legislatures are supposed to do? Listening to experts, weighing scientific opinions, finding facts. Isn’t that what we elect our representatives to do? What special expertise do courts bring to this kind of question that legislatures don’t have? It would seem that what many of those who applauded this decision liked about it was the result. They didn’t care who decided it or how it was arrived at as long as the result was right.

I disagree with this approach because I see the protection of our liberty in the protection of our constitutional process. When the result becomes more important than the process, we weaken the process. And a process that is weakened is less protection against overreaching government in the future.

Somewhat similarly, Eric Zorn’s "Change of Subject" column in last Friday’s Chicago Tribune was entitled: "Gay marriage ruling speaks to our nation's highest values". Actually, what might have spoken even more to our values is if the court had not stepped in to decide this issue for us, but if we the people had been allowed to do it ourselves. The way things have been going, I think what Mr. Zorn (and Ms. Lithwick) wanted would have happened, probably sooner than either of them thought possible. And how much better would it have been, and how much more secure would the rights in question be, if the people had been come to this result themselves, instead of having a court force it on them.

I hope that the court, by interrupting our natural democratic processes, has not created an issue, like abortion, which will be an open sore for years to come because the people were not allowed to resolve it properly by themselves.

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* Geoffrey A. Fowler, "Judge Voids Ban On Gay Marriage," The Wall Street Journal, August 5, 2010, page A1.

"Originalism" Versus the "Living Constitution" - Follow-Up

Right after I posted "‘Originalism’ Versus the ‘Living Constitution’", The New York Times reported that the Obama administration was no longer basing its constitutional defense of the health care mandate on Congress’s power to regulate interstate commerce. Instead, the Justice Department will be defending the requirement that individuals buy health insurance on Congress’s power "To lay and collect taxes". (As you remember, beginning in 2014, if an individual does not have a health care plan deemed acceptable by the federal government, then he or she has to pay a penalty to the federal government, which would be collected by the Internal Revenue Service.)

In September of last year, President Obama flatly rejected the notion that the penalty was a tax:

"‘For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,’ the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program ‘This Week.’

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, ‘I absolutely reject that notion.’"

President Obama was saying this because, among other reasons, he had promised in his campaign that he would not raise taxes on families earning less than $250,000 a year. Congress went along with that theory and included all kinds of "findings" in the health care bill about how the individual mandate was important because of the effects on interstate commerce.

But now that the bill has passed, the Obama administration is saying, in effect, "Surprise. Didn’t mean it." Or, in the words of The New York Times:

"The law describes the levy on the uninsured as a ‘penalty’ rather than a tax. The Justice Department brushes aside the distinction, saying ‘the statutory label’ does not matter. The constitutionality of a tax law depends on ‘its practical operation,’ not the precise form of words used to describe it, the department says, citing a long line of Supreme Court cases."

Apparently, Barack Obama, the law school lecturer on constitutional law, must have forgotten about those cases when he was talking with George Stephanopoulos. Of course, when then-Senator Barack Obama was running for the Democratic nomination for President, he opposed the individual mandate and criticized Hillary Clinton for favoring one. (Once again, "Surprise.")

But the more interesting point is this (and in raising it, I freely acknowledge that I am not a constitutional law expert of any kind): If the requirement that you either buy health insurance or pay a penalty is a tax because it is expected a fair number of people will not buy the insurance and will pay the penalty, which will raise a substantial amount of revenue for the government, what limits are there on Congress’s power? What is stopping Congress from requiring almost anything and then justifying it on the grounds that it is a tax because those who fail to comply must pay a penalty to the IRS?

Obviously, there has to be some limits, but I am not sure I would trust the Obama administration (or the big government conservatism of its predecessor) to respect them.