Tenther Madness
I recently wrote this piece in part because conservatives have been embarrassing themselves by arguing that President Obama’s “czars” offend the constitutional separation of powers. For at least three decades, conservatives have argued that the Constitution requires a unitary executive and now, all of a sudden, they discover that the Constitution requires the president’s advisers to submit to congressional oversight. That’s not a principled position.
There is a temptation, when you lose at the polls, to use the courts for political gain. Thus, we recently learned from Judge Andrew Napolitano that health-care reform is unconstitutional, even though the Constitution authorizes Congress to regulate interstate commerce, because “one goes to a physician not to engage in commercial activity … but to improve one’s health.” As it happens, I visited my physician last week for a regular check-up. When he presented me with a bill, I explained that I had visited his office only to improve my health, not to engage in commercial activity. He wasn’t impressed. Maybe next time I’ll bring a copy of Judge Napolitano’s op-ed.
(By the way, the subheading of Napolitano’s piece, “Why hasn’t the Commerce Clause been read to allow interstate insurance sales?,” makes no sense at all. The Commerce Clause authorizes Congress to regulate interstate commerce but it doesn’t require Congress to regulate in any particular way. Everyone reads the Commerce Clause “to allow interstate insurance sales.”)
Added to this, the so-called Tenthers think all manner of new legislation is unconstitutional. There is no question that the courts have weakened the constitutional restraints on Congress, and it’s useful to point that out in order to guard against further attrition. But come on. The courts are not going to declare health-care reform unconstitutional. It’s just a fanciful notion that consigns its adherents to the political fringe. Federal regulation is with us, for better or worse, and conservatives should try to make it better rather than worse.
Conservatives have long argued that it’s unhealthy to use courts to decide policy questions because it removes contentious political issues from the realm of democratic deliberation. What’s more, when a political movement focuses its efforts on declaring some policy unconstitutional, it removes itself from the debate over how to craft that policy. Instead of revisiting Supreme Court cases from the 1940s, the Tenthers might want to read up on health policy.
For the same reason, conservatives should be defending the president’s use of informal policy czars. Creating a White House policy apparatus doesn’t undo the growth of the administrative state since the New Deal — that’s not going to happen anytime soon — but it’s a significant counter-measure: it helps shift the balance of power towards unitary executive control of the bureaucracy. And that’s a change we can believe in.
An update: So some commenters chide me for conflating interstate commerce with commerce simply. I sympathize with that position, but as far as the Supreme Court is concerned, Congress may regulate any “commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” So even though those of us the D.C. area often do cross into Maryland or Virginia for medical services, there’s really no question that medical services generally — especially large health insurance plans — fall into this category. I was not making a point about the Constitution as originally understood, just that insisting upon the unconstitutionality of health-care reform is a futile political strategy. If you’d like to use the weakening of the Commerce Clause as another excuse to get angry, that’s fine. But, as I said, it makes sense, at the same time, to advocate a policy that is preferable (or, perhaps, less objectionable) than the alternatives — because no one is going to invoke the Constitution in order to prevent any such policy from being enacted. As with my point about the czars, even if you’ve lost one constitutional battle, there’s still room to move in a better or a worse direction.
Your doctor visit anecdote, while cute, is actually a really bad way to make your case. How many state lines did you cross to visit your doctor? How is his or her bill an example of interstate commerce? I fail to see it.
The case to allow interstate trade of health insurance, though, is quite reasonable, since all would agree that increased competition would reduce prices and improve service. Surely in the digital age there can be no excuse to leave the borders closed to trade.
If you want to make your case, use Article I, Section 8. Though I think it’s a stretch to attach the general welfare of the United States to health care (from the context, it seems more of a defense policy for the nation, not its people), it’s all your argument has got.
As a practitioner of alternative medicine, i find the notion of enshrining modern medicine into law to be problematic at best. There are plenty of ways to heal people that do not involve expensive pills and even more expensive surgeries. If you want to reduce health costs, allow alternative practitioners to prove their worth on a level playing field with modern medicine. Pull the incredibly distorting subsidies for medical research (as well as the agriculture subsidies that put corn syrup at the top of the food pyramid) and see who can treat your symptoms better: the nutritionist, the acupuncturist, or the surgeon.
As a conservative, I am all for market forces driving the system. But what we’re calling market forced these days are total contortions of the market bending over backwards to reward doctors over competent healers of all stripes. To my mind, the absence of this discussion from the debate speaks volumes about why this process is so complicated and so insanely expensive.
(for a fleshed out version of this argument, see: http://d-poli-blog.blogspot.com/2009/08/health-care.html )
— D-Blog · Oct 8, 09:08 PM · #
I agree with D-Blog: the critical word is “interstate”.
While the US Constitution may not give the federal government any explicit authorisation to manage health care, there’s no restriction on what the states may do. Health reform is desirable, but why should it be the responsibility of Washington, DC? Since there is some disagreement about ends, and wide disagreement about means, experimentation state by state seems like an excellent approach. (Though as Peter Suderman pointed out in the WSJ today, many of the experiments tried so far have been unsuccessful.)
In my own country, Canada, health care is explicitly the responsibility of the provinces. Our national system was established after Saskatchewan lead the way, and then the federal government bribed the other provinces to follow certain national standards. But the administration and most of the funding are still provincial.
— M. Grégoire · Oct 8, 10:11 PM · #
Anyone who reads the Declaration of Independence, the philosophical foundation for the Constitution, then reads the Constitution, can’t honestly defend healthcare reform as a responsibility of the federal government.
— mike farmer · Oct 8, 10:33 PM · #
This is a remarkably fatuous post. Rarely is going to the doctor interstate commerce, unless you are crossing borders. Are we to assume, Steven, that you’ve never studied US history?
And yeah, we get it, the courts haven’t followed the Constitution in quite a while, so those that bring it up are cranks.
— Disgruntled · Oct 8, 11:00 PM · #
Not so. The obligation of the government in regards to health care reform is right there in the preamble. Or did you think that part didn’t count?
— Chet · Oct 8, 11:53 PM · #
The 10th Amendment doesn’t specifically prevent the federal government from doing anything. It merely establishes the principle that the people, mostly likely through their elected representatives, have the right to limit the actions of the federal government when and where those actions exceed what is spelled out in the Constitution. It does not, however, require any such limitations and I think it’s impossible to believe the Founding Fathers ever intended the judiciary to become an arbitrary legal enforcer of 10th Amendment restrictions.
Too many conservatives think their arguments against this or that federal program are somehow imbued with some sort of authority because of the 10th Amendment. They’re not.
Mike
— MBunge · Oct 9, 02:33 PM · #
Of course they are, Mike. Just because its not something the judiciary is supposed to enforce doesn’t mean it doesn’t exist. This unconscious judge-worship is the worst kind.
— Adam Greenwood · Oct 9, 05:31 PM · #
Here’s a hint to Mr. Menashi. Most of your readers went to college. Most of us learned about the concept of “tone.” If your aim is to persuade conservatives that (i) arguing the unconstitutionality of health care reform is bad political strategy, because the courts will not support that position, (ii) in any case, using the courts to advance a political agenda is incompatible with the larger conservative project of fostering democratic self-rule, then don’t use words which characterize the people you are trying to persuade as crackpots and lunatics.
For those whose skills at textual analysis are rusty, I note that (i) the suffix “-er,” in the modern political lexicon, is used only for people outside the bounds of respectable discourse, e.g., truthers and birthers, and (ii) the word “madness” indicates that your opponents are, well, not sane.
— y81 · Oct 10, 01:22 PM · #
The claim that health care reform exceeds Congress’ Commerce Clause powers is blatantly a political claim, not a legal one. That the courts will not invalidate health insurance reform on Commerce Clause grounds is as close to a known fact as any hypothetical statement can be. Setting aside an individual mandate or a public option, it seems clear that the courts would not disturb even an act establishing universal single-payer coverage – at least not on Commerce Clause grounds. Longstanding caselaw, affirmed by “conservative” judges as well as “liberal” ones, states that an activity is properly subject to Congress’ jurisdiction even if it is entirely intrastate in nature, so long as it has some substantial effect (direct or indirect) on interstate commerce.
— Donald · Oct 10, 07:35 PM · #
Re: The case to allow interstate trade of health insurance, though, is quite reasonable, since all would agree that increased competition would reduce prices and improve service.
It is not the case that a company headquartered in one state can not sell health insurance in another state. There are fewer than a dozen major health insurers. There are 50 states. Since health insurance is sold in all 50 states, one must necessarily conclude that insurance is sold by companies in states other than where they are incorporated.
The hidden agenda is not to let Aetna sell its policies in all 50 states (which it can already) but to allow companies to do an end-run around state regulation. That’s about as anti-10th Amendment as you can get, and a case of blatant hypocrisy on the part of “conservatives” who push for this.
— Jon · Oct 10, 10:18 PM · #
When I lived in California, I had an extremely affordable plan that suited my needs perfectly. Now that I’m back in New York, there are barely any choices, and they are all bad and too expensive. If my insurer from California offered the plan here, everyone would win except the bloated insurers monopolizing New York. Isn’t this what competition is all about? Or if I break my ankle in Central Park instead of Yosemite park, is that somehow four times more costly?
— D-Blog · Oct 13, 05:51 AM · #
D-Blog: which “alternative” medical treatment did you plan to use to fix that broken ankle?
Modern medicine gave us modern life. Acupuncture has been shown in study after study to be no more effective than placebo. And by “nutritionist” I hope you mean a scientist with a degree in nutrition, not someone who thinks brown rice and leafy green vegetables will cure cancer.
Give me a surgeon any day. And yes, they’re expensive. And thus the problem. The solution is not cheaper “alternative” solutions that are ineffective at best. And the day that “alternative” medicine is on a level playing field with real medicine will be a very bad day indeed.
— ray butler · Oct 14, 07:15 PM · #
y81 hits upon the basic arrogance/tone problem of the American Scene.
— Carl Scott · Oct 15, 07:35 PM · #