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.