It would be nice, it really would, if partisans on both sides of a legitimate, close issue of national importance would admit that there are valid arguments on each side, show some mutual respect, and not frame their arguments as if anyone who thinks differently is deluded, stupid or evil.
Thus it has been elevating, if, I suppose, misleading, to read over a year’s worth of debate on the topic now under consideration by the Supreme Court, Obamacare’s so-called individual mandate, over on the scholar and lawyer- glutted blog, the Volokh Conspiracy. Written by distinguished and articulate academics, it is a right-leaning and libertarian site for sure, yet manages to cover all sides of most of the issues it considers thoroughly and fairly. Nobody could read the detailed, case and precedent-filled essays about the individual mandate and think for a moment that its constitutionality is an open and shut case. It’s obviously a very close question, and one that involves far wider implications than merely one health care law. This is one of the periodic landmark constitutional cases in which the Supreme Court is being asked to approve another key adjustment in the meaning of our remarkably flexible but hard to amend national by-laws, or, in the alternative, put up a red flag and a brick wall that reminds our government that there are some things is cannot do, even if it would dearly like to.
If you care about the case being argued in the Supreme Court as I write this, go read some—it would take you a month to read it all—of the discussions on this topic over at Volokh. If you can understand the sometimes technical and overly-dense writing, you will recognize how difficult a legal issue this is. If you can’t understand it, then stop rendering opinions about the case, the mandate, and the inevitability of its approval or rejection. Journalists and pundits should follow the same advice.
Improvidently summarizing thousands of words, arguments and cases into a short summary, the fact is probably that the mandate is unconstitutional, but unconstitutional in a way that is only slightly, if at all, more egregious that what has been permitted by the Court in the past. The U.S. Supreme Court is governed by the principle of stare decisis, which means—and you’re listening to someone who once inspired his Latin teacher to jump in a waste basket here—that the Court’s default position is to follow the decisions of its predecessors even when it doesn’t agree with them, in the interests of stability and predictability. When a precedent is not followed, but over-ruled, it means that the Justices have decided that the earlier course was a mistake, or that it will lead off a future metaphorical cliff. There is also a close ethics issue, embodied by the Constitution’s own nod to utilitarianism, the so-called “Necessary and Proper Clause” :
“The Congress shall have Power …To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
All codes and constitutions need a clause like this to provide authorization when it becomes necessary to do something that wasn’t anticipated or otherwise allowed for in the original document. It is an acknowledgment that human beings can’t make perfect laws and rules (or ethical principles) that work 100% of the time. But the clause isn’t just about what is necessary, but also about what is proper, which means that justifying legislation under the clause requires a utilitarian analysis tempered by absolutism. Do the ends, in the case being considered, justify the means, or are the constitutional principles that must be nicked, stretched or ignored too important to sacrifice? It is a critical issue, and one both sides tend to argue away. “The mandate is necessary to accomplish these important goals!” say the law’s proponents. “The law requires the addition of new Congressional powers, and Congress is too powerful already!” say opponents. “Is it necessary enough that it outweighs the Constitution’s limitations on government power, or not?” ask the Supreme Court, and that, in the end, is an ethical balancing test.
In recent weeks, the theme aped by Obamacare’s supporters in the media and elsewhere has suddenly changed from “we think the mandate should be upheld” to “there is no question that the mandate is constitutional, and Supreme Court approval is and should be virtually certain.” This is either a delusion, irresponsible advocacy or an intentional lie, and it definitely misleads the public. After Slate’s Dahlia Lithwick, a legal analyst, wrote a piece that essentially argued that there was no legitimate way the mandate could be struck down (the gang at Volokh later eviscerated her reasoning), and that any Justice who disagreed was obviously a politically-driven hack, James Taranto opined, “Perhaps her goal in insulting the justices is not to win them over but to discredit them in her readers’ eyes should they dare to defy her.” Indeed, I fear that this is the entire subtext of the misleading coverage of the issue in much of the media for more than a week. On “This Week With George Stephanopoulos,” the pundit roundtable’s liberals proclaimed that the “smart money” was betting the mandate would be approved by a 7-2 or 6-3 margin. What smart money? Ever since Obamacare was passed and the circuit courts started splitting over its constitutionality, with strong judicial arguments being crafted to support both sides, anyone with two brain cells to rub together had to know that this would be a razor-thin call either way.
Ah, but admitting that a decision is a difficult one with good arguments on both sides means that you can’t scream that the case was fixed and your opposition was biased if and when you lose.
Yesterday, legal analyst Jeffrey Toobin tweeted from the oral arguments that the mandate was in big trouble, that Solicitor General Donald Verrelli had been unable to convincingly answer the core question that underlies the argument that the mandate violated the Commerce Clause: If Congress can make individual citizens buy health insurance, what’s to stop it from forcing citizens to do anything else it deems in the public interest? Well, yes, that’s a big question, and it’s surprising Verrelli wasn’t ready for it. Still, the mandate’s legality is still a close call, and there is every reason to believe that the Justices are, or have, considered the issue on good faith legal grounds. Thus the kind of intellectually dishonest spin that was featured in the Washington Post’s second page this morning is both irresponsible and reprehensible.
The author was Melinda Henneberger, a Post political writer and blogger, who, perhaps spurred by the fear inspired by Toobin’s tweet and inspired by Lithwick’s strategy of preemptively challenging the legitimacy of an anti-mandate decision, wrote:
“Inside the building, robed justices were hearing arguments about the constitutionality of the health-care law’s “individual mandate.” Originally a conservative concept, it would impose a modest fine on those who won’t buy insurance, even with the help of subsidies, instead of allowing them to continue passing the cost of their “liberty” on to those of us who are insured.”
Wow. You can’t spin better than that!
- “Originally a conservative concept”…this is the now-popular progressive argument designed to suggest that because the conservative Heritage Foundation once issued a paper suggesting something similar to the individual mandate, it is hypocritical for Republicans to challenge it in Obamacare. Garbage. If it’s unconstitutional, it’s unconstitutional, and Democrats and progressives should be capable of opposing unconstitutional measures regardless of who proposes them. Henneberger thinks that one’s judgment of what is legal should be governed by who proposed it, so she thinks it is a character deficit to behave otherwise. In fact, the opposite is true.
- “a modest fine”…what does the size of the fine have to do with the constitutional principle that Congress shouldn’t be able to tell people how to spend their own money? So if Congress imposed modest fines for not buying spinach, or not buyng a Volt, or not buying a membership in the Democratic Party, that would all be OK? Apparently.
- “on those who won’t buy insurance, even with the help of subsidies”…I believe the proper term is “those who choose to spend their finite resources on expenses that they deem of higher priority at this time in their lives, health, and personal circumstances. “Won’t” implies that someone is insisting otherwise…who gets to do that?
- “instead of allowing them”...Oh, so if I get to spend my money the way I want to, it’s just because Big Brother, in His beneficence and wisdom, deigns to allow me to do so? Thus are subtle concepts of government control fed to us every day by the many statists in the media.
- “to continue passing the cost of their “liberty” on to those of us who are insured.” The scare quotes around liberty are both offensive and dishonest. Being able to choose what to buy and what not to buy isn’t “liberty,” it’s liberty, damn it. There’s no “continue” involved, if someone who has not incurred health care costs estimates that he or she won’t need any for a particular period, either. Letting people live the way they choose rather than moving in lock-step to a state authority who decided what is best for all does have costs to the rest of us, and benefits too. Henneberger’s contemptuous rhetoric could have been written by Lenin or Mao.
Finally, she concludes with the capper: ” [C]onservatives are counting on activist judges to save their bacon.” Of course! If Obamacare loses, it’s only because activist judges unfairly warped the law to achieve the ends of their political cronies. Not because the architects of health care reform foolishly and unnecessarily built their entire law on a speculative constitutional foundation. Not because a very close case was considered by nine serious legal professionals who weighed the arguments, cases and complex issues and made a fair, justifiable and honest decision.
“It would be nice, it really would, if partisans on both sides of a legitimate, close issue of national importance would admit that there are valid arguments on each side, show some mutual respect, and not frame their arguments as if anyone who thinks differently is deluded, stupid or evil….”