My critique of George Will’s latest column.
That rock in the health-care road? It's called the Constitution.
By George F. Will
Thursday, January 14, 2010; A19
Although Democrats think their health-care legislation faces smooth sailing to implementation, there is a rock dead ahead -- a constitutional challenge to the legislation's core. Democrats who assume it is constitutional to make it mandatory for Americans to purchase health insurance should answer some questions:
BTC: If anyone “assumes” it is constitutional, Democrat or Republicrat, then they are likely not versed enough in constitutional law to be able to respond to complex constitutional questions of law and instead rely on those trained in such areas who advise Congress. It seems Will is taking his layman’s approach to law and appealing to those who would prefer to do likewise, rather than taking the advice and counsel of experts. Will takes this same stance when going against experts in the field of science.
Would it be constitutional for the government to legislate compulsory calisthenics for all Americans?
BTC: I don’t assume health care legislation is constitutional, I believe that it is based on analysis and consensus opinion, but I’ll try to take a stab anyway. I’d say yes, such a law would likely be constitutional (if unpopular and difficult to enforce).
If not, why not?
BTC: Oh, umm, if not, then likely it means a court would determine that the law were either procedurally flawed (too broad, wrongly passed, etc.) or, from a substantive perspective, did not reasonably relate to a legitimate government purpose, or is somehow outside the scope of Congress’ authority.
If it would be, in what sense does the nation still have constitutional, meaning limited, government?
BTC: This keeps coming up throughout Will’s op-ed; either agree with him that this one thing is unconstitutional, or it means that the entire constitution might as well be thrown out. So if Congress can constitutionally require calisthenics, then govt is no longer limited? The President wouldn’t have term limits, or be prohibited from passing laws? Would the military be allowed to take over? No more representative government or elections? The constitution limits the government in many many many many ways. Even if I were to concede that Will is right on the constitutionality of health insurance mandates, why would that mean that we no longer have a limited government?
Supporters of the mandate say Congress can impose the legislation under the enumerated power to regulate interstate commerce. Since the New Deal, courts have made this power capacious enough to include regulating intrastate activity that "substantially affects" interstate commerce. Hence Congress could constitutionally ban racial discrimination in "public accommodations" -- restaurants, motels, etc. -- as an impediment to interstate commercial activity.
BTC: Makes sense to me. But do only “supporters of the mandate” say this? No one who opposes the mandate believes that the mandate is constitutional? The is obviously Will’s misleading construct – his argument is sooooo right, that the only way it can be disagreed with, is due to partiality.
Opponents of the mandate say: Unless the commerce clause is infinitely elastic -- in which case, Congress can do anything -- it does not authorize Congress to forbid the inactivity of not making a commercial transaction, of not purchasing a product (health insurance) from a private provider.
BTC: Here’s that argument again – if Congress can require people to purchase health insurance (like they do car insurance) then it would mean they could do ANYTHING. This is not a rational argument. If Will has a rational constitutional argument, he is yet to make it.
"Congress can regulate commercial activities in which people choose to engage, but cannot require that they engage in those commercial activities." So says Sen. Orrin Hatch, who also notes that if Congress can mandate particular purchases to help the economy, there was no need for Cash for Clunkers: Congress could have ordered people to buy cars (with subsidies, if necessary). Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise Tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?
BTC: I’m not even sure what the arguments are here. Setting aside the “rational relationship test” that all legislation must pass, I suspect that requiring people to buy automobiles would probably be constitutional under the Interstate Commerce Clause. Of course, the “need” for Cash for Clunkers was to inject government money into the system, and just forcing someone to buy automobiles would not have done that, or helped the economy – so saying that there was “no need” for Cash for Clunkers makes no sense. The sole purpose of Cash for Clunkers wasn’t to make people buy cars.But yes, I suspect if that had been the purpose, it would satisfy the Interstate Commerce Clause.
I’ve already talked about calisthenics, but the excise tax on cheeseburgers is the oddest example. The federal government currently taxes gasoline – why wouldn’t they be allowed to tax cheeseburgers? Will keeps throwing out arguments as if they are obvious, which obviates the need for him to explain what his argument is. Unfortunately, because of this, I don’t get it.
Many liberals, says Hatch, spent eight years insisting that "the Constitution sets definite and objective limits that the president must obey."
BTC: True – but we are talking about Congress’ power, not the President’s. Is Hatch suggesting that only liberals think there are limits on the president’s powers? Besides, “liberals” aren’t now saying Congress doesn’t have to live within its constitutional limits; “liberals” are saying that the individual mandate doesn’t stray from these limits.
There are, however, no constitutional controls on Congress if there are no limits on its power to declare all its preferences "necessary and proper" for the regulation of commerce.
BTC: Again, no one is saying that there are no limits on what Congress can deem necessary and proper. All that Congress is saying is that THIS particular legislation is necessary and proper. If Will wants to make an argument as to why it isn’t, I’d be happy to listen, but all he’s doing here is making snide comparisons. Here’s an example, once, Congress tried to pass a law restricting handguns in schools. This was overturned by the Supreme Court because, contrary to Congress’ claim, the Supreme Court didn’t think this had anything to do with interstate commerce. Will is arguing that, if the court were to affirm that health insurance did have something to do with interstate commerce, then the guns-in-schools legislation would not have been overturned. Tell me why that makes any sense.
Stuart Taylor, a judicious analyst of legal matters, says (in the National Journal) that the Supreme Court probably would uphold the constitutionality of the mandate, for two reasons: Because uninsured people create substantial economic effects by seeking free care from emergency rooms. And because the mandate is, in Congress's judgment, "necessary and proper" for financing health-care reform.
BTC: Hang on – Stuart Taylor is staunchly opposed to the health insurance mandate. But he thinks that the mandate is constitutional? At the beginning of this piece, Will said it was “supporters” of the legislation that thought it was constitutional and that it was “opponents” of the legislation that thought it was not. But the person he quotes as saying it is constitutional, is an opponent. Moreover, in the referenced article, Taylor also points this out:
So, why are most experts (and this columnist) so sure that the justices would uphold the mandate? And why do even Washington lawyers David Rivkin and Lee Casey -- the most prolific and among the most cogent critics of the mandate's constitutionality -- stop short of predicting that the Court would strike it down?
So while Will says it is supporters that think the bill is constitutional (implying that their opinion is based on their ideology) his referenced expert reveals that “most experts” even skeptics, believe it is constitutional.
This is just disingenuous on the part of Will. Of course, if he’d started his op-ed saying “most experts and even opponents believe the mandate passes constitutional tests, but I don’t” he may have had to make stronger arguments to support his minority, lay opinion. And, he may have struggled to convince his editor to allow him to use the headline that constitutionality was some “rock in the road” for health care.
But if any activity, or inactivity, can be declared to have economic consequences, then anything can be regulated -- or required.
BTC: Do you really think so? Yawwwwn.
Furthermore, judicial review -- and the Constitution itself -- is largely nullified by a doctrine of virtually unlimited judicial deference to Congress's estimates of what is "necessary and proper" for the regulation of commerce.
BTC: Again – the constitution certainly does far more than restrict the scope of Congress’ legislative authority. Does Will really think that this will open the floodgates back to segregation? Will Congress now be able to infringe on free speech? Sure, hyperbole has its place, but this is ridiculous.
If Congress does something beyond its constitutional powers, that something does not become constitutional merely by Congress saying it is necessary for this or that.
BTC: Agreed. But Congress isn’t saying it is necessary “for this or that” it’s saying its necessary for the regulation of interstate commerce. It almost seems that Will is making an argument that health care and health care insurance is not related to interstate commerce. If that’s what he’s arguing, he’s not doing a very good job of it. If he’s arguing that it is related, but that there is some other reason why this legislation should be deemed unconstitutional, I’m sure not seeing it.
Taylor also says that the alternative to upholding the mandate is for the court to strike down a president's "signature initiative -- something that no court has done in more than 70 years, for good reason." The reason is a general duty to respect government decisions arrived at democratically. Which brings us to what conservatives must believe in order to believe that the Supreme Court should declare the insurance mandate unconstitutional.
Judicial review -- let us be candid: judicial supervision of democracy -- troubles people who believe, mistakenly, that the Constitution's primary purpose is simply to provide the institutional architecture for democracy. Such people 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."
BTC: I’ll be honest. I don’t understand what he’s saying in these paragraphs. It looks like he’s opposing the position that courts should bow to majority rule. Not sure why that’s relevant, but let’s read on.
More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual -- basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.
That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution's text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.
BTC: He said he was going to tell us what conservatives would have to believe one of these things to also believe the mandate to be unconstitutional. He doesn’t say which, but I assume the latter? I think he’s arguing now not as to whether the mandate IS constitutional, but whether it SHOULD be constitutional. For that, he’s giving his opinion as to what he thinks the constitution should say and stand for. I suppose that’s fine. But it doesn’t really go to whether the mandate is constitutional, which is what I thought we were discussing.
The latter kind of conservatives are more truly conservative than the former kind because they have stronger principles for resisting 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.
BTC: AAAhhh – so he’s not concerned as to whether the mandate is constitutional. He doesn’t even think it is unconstitutional. But he thinks it should be challenged because it is a bad idea and because it clarifies what conservatives feel the constitution should be about. I think spending time and money challenging every law that one considers a “bad idea” on its constitutionality is a waste of time and money.
But if the mandate is such a “pernicious idea” then why not write an op ed as to why it’s a pernicious idea, and not write an op ed about why its unconstitutional – even when experts, and the author, agree that it’s probably not?
Bottom line is Will thinks this is a bad bill. Rather than substantively discussing what's bad about it, he wants to say it's unconstitutional. When all the experts he consults say it likely is unconstiutional, he argues that it should be, notwithstanding the law. But instead of even saying that, he writes his opinion as if it is likely unconsitutional ("rock in the road") and that only those who are in favor of it ("supporters say") believe it is constitutional.
To me, that undermines one's argument.