City of Brass

Today, the President signed health reform into law. This is an incredible, historic achievement.

And it was done entirely without the help of the obstructionists of the GOP, who decided that it was more important to humiliate President Obama than to work with him to try and address the nation’s desperate need for genuine reform. To quote conservative David Frum, bemoaning the loss of sanity among the Republican Party mainstream,

The gap between this plan and traditional Republican ideas is not very big. The Obama plan has a broad family resemblance to Mitt Romney’s Massachusetts plan. It builds on ideas developed at the Heritage Foundation in the early 1990s that formed the basis for Republican counter-proposals to Clintoncare in 1993-1994.

The Obamacare = RomneyCare argument is increasingly conventional wisdom even among conservative cognoscenti like Patrick Ruffini, who tweeted as much on Sunday night. This in itself undermines the “Repeal It” campaign now taking shape among the GOP base, which is foolish strategy for a number of reasons (and therefore, I welcome it). Obviously, the Republicans are trying to save political face here; having demagogued against health care for 14 months to an increasingly rabid base, they can’t go home and say “well, that’s that.” But what are their ostensible policy reasons for repeal?

The basic conservative argument that we can’t afford health reform was blown out of the water by the nonpartisan CBO analysis, which found that the reform bill will actually reduce the deficit by over a trillion dollars over the next decade. Contrast this with the (bipartrisan) Medicare Part D, passed under President Bush’s watch, which blows a giant hole in Medicare funding. When I ask conservatives why Medicare Part D isn’t part of the various RepealIt petitions and Twitter campaigns taking shape out there, the answer is invariably, “one thing at a time.” I don’t see why you cant advocate repealing two things at a time, but OK assuming that’s the case, why wouldn’t you want to repeal the demonstrably, objectively worse legislation (from a deficit perspective) first? The fact that the repeal campaign is being spearheaded by the Club For Growth only puts the fiscal-hawk hypocrisy in starker relief.

The real Republican argument against health reform is all about “Freedom” – specifically, complaining that the legislation’s requirement of an “individual mandate” infringes on liberty. Actually the rhetoric is utterly insane on this; Republicans liken the bill not just to socialism but now, fascism, tyranny, and the “death” of democracy (even though the legislation was passed by an elected Congress, will be signed into law by an elected President, and the election this November provides voters their usual opportunity for accountability).

The crux of the argument boils down to the 10th Amendment, the Commerce Clause, and “strict constructionism” which is basically all a question of settled law and precedent. The 10th Amendment simply states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that Congress can’t create laws about anything not specifically spelled out in the Constitution. Now, since Congress clearly creates laws about things not mentioned in the Constitution all the time, you might wonder how that is poossible. The answer is in the “Commerce Clause” (Article 1, Section 8) which states, “Congress shall have the power … to regulate commerce with foreign nations and among the several states” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

So, in essence, Congress can pass laws affecting interstate commerce. Two centuries ago the word “commerce” was mainly limited to physical goods, but in the modern era it applies to pretty much everything – and the Commerce Clause has been broadly interpreted by conservatives and liberals alike to justify Congress’ ability to pass laws about pretty much anything that has a nationwide scope. In fact, the Commerce Clause was used to enact the New Deal, saving the country from the Great Depression under FDR, and for the landmark Civil Rights Act of 1964.

Now, the conservative argument for why the bill is unconstitutional relies on a “strict constructionist” approach which denies the validity of the Commerce Clause as applicable to health reform. (note that they raised no such objection for Medicare Part D, when President Bush was promoting it). There’s essentially a consensus that they are wrong; many pundits have been weighing in on this. For example, Marc Ambinder from the Atlantic:

Congress’s latitude here is wide. And this health care legislation has an undeniably broad effect on the economy, even though the specific provision in question is inherently localized. So the question is: can the government regulate localized — individual — decisions if they collectively serve a purpose that Congress is constitutionally empowered to be concerned about — AND if depriving Congress of this particular right would upend the regulatory scheme itself. Note: the definition of Commerce itself — the exchange and transit of goods and services — is a red herring. The courts have accepted Congress’s ability to regulate things other than “Commerce.”

(…) when localized decisions have nationalized effects, then it is “squarely within” Congress’s purview to regulate it. (Wrote Justice Antonin Scalia in a concurring opinion: “Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.”) Congress believes that the mandates, by creating a pool of healthy and unhealthy folks, will help contain the cost of health care. That’s their intent; the court would be hard pressed to argue policy with Congress.

(Ambinder quotes case law as precedent – notably Raich vs. Gonzales). Note that even the most conservative members of the Supreme Court have basically affirmed this view.

Matthew Yglesias also chimes in:

There’s long been a strain of thought which says [Article 1, Section 8] should be interpreted simply as a prohibition on state-level trade barriers with Commerce “among the several States” understood as basically about transporting goods across state lines. But from the beginning, the federal government’s powers have been interpreted rather more expansively than that. We had the Louisiana Purchase, the Bank of the United States, Henry Clay’s “American System,” a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.

Over the past 20 years the Supreme Court’s conservative majority has started to reel this authority in somewhat, declaring that the Violence Against Women Act and the Gun Free Schools Act aren’t really about commerce and that economic impacts were cited in the legislative history as just a kind of pretext. But nobody can seriously deny that health reform is a bona fide regulation of economic activity for an economic purpose.

And let’s make a final note that the individual mandate itself was originally proposed by the conservative think tank, The Heritage Foundation, and passed into law in Massachusetts by Republican governor Mitt Romney (who is going to be one of the major aspirants for the 2012 GOP nomination). That should be interesting!

Also, see further comments about the prospects for repeal/constitutional challenge by Ezra Klein and by David Weigel.

One last thought. Expecting the Supreme Court to overturn decades of jurisprudence and precedent, solely for political gain, is the very definition of “judicial activism”. Once upon a time, conservatives used to argue against such a thing. But conservatism is dead; Republicanism alone remains, and for them the ends justify the means. These are the same people who were arguing that “The Constitution is not a suicide pact” after 9-11 during the Bush Administration’s power grab.

Related: Frum’s piece is titled, “Waterloo” and deserves a full read for a powerful conservative indictment of the Republican Party. They truly have become the Party of No (Class or Principles).

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