Even from the left’s point of view, there is no reason left to pass this bill, except Obama’s will be done

In today’s New York Post, Richard Lowry explains in clear terms the reason for the left’s dramatic turn against Reidcare/Obamacare: it’s the individual mandate, shorn of the public option. “The provision to force everyone to buy health insurance long labored in obscurity, overshadowed by the more glamorous and controversial public option,” Lowry writes. “No more…. As far as the left is concerned, the individual mandate will make Barack Obama the tax collector for the insurance-industrial complex.” Yesterday I described this dictatorial combination of state and corporate power as fascism.

And then there’s this concise summary of the current situation from Lowry’s NRO colleague Yuval Levin: “What’s left of the bill compels universal participation in a system that everyone agrees is a failure without reforming that system, and even exacerbates its foremost problem—the problem of exploding costs.” Finally, adds Lowry, with the left now against the bill and its popular support now down to 32 percent, “Practically the only people who think passing the bill in its current form is a good idea are Democratic congressmen.” Talk about the Undead!

The left revolts
December 18, 2009

Keith Olbermann is ready to go to jail over it. Markos Moulitas is pre pared to see the health-care bill die over it. Howard Dean is assaulting the White House over it.

It’s the individual mandate, the source of rare cross-ideological agreement in the health-care debate. The provision to force everyone to buy health insurance long labored in obscurity, overshadowed by the more glamorous and controversial public option. No more.

The public option’s death left the individual mandate exposed. Disappointed Liberals now confront in the cold light of day a provision that will, by force of law, make people hand over money—and a lot of it, as a percentage of their total income—to the insurance companies.

As far as the left is concerned, the individual mandate will make Barack Obama the tax collector for the insurance-industrial complex.

Outside of the income and payroll taxes and Prohibition, the individual mandate might be the most intrusive peacetime measure ever undertaken by the federal government. It will require people to buy a private good or service as a basic condition of living in the United States. If the Constitution weren’t all but a dead letter on such questions, there’d be a roiling debate over what authority the federal government has for this coercive extravagance. [LA replies: notice how the editor of the supposed flagship magazine of American conservatism writes off the Constitution. Indeed, it is fair to say that in Lowry’s entire career, he has shown precisely zero awareness of and zero concern about the perversions of the Constitution that have allowed the modern liberal state to come into existence.]

We’ll have to settle for a right-left pincer movement. against it. The right hates the governmental fiat and thinks—given the regulations and taxes that add to the cost of insurance—the mandate’s a bad deal. As one wag said of the bill, “First, it transforms insurance into a product that few rational people would buy. Second, it forces them to buy it.”

The left hates that the insurance companies get the proceeds. Instead of cutting out the dastardly “middle man,” the bill ensures that the middle man scoops up even more customers. Olbermann thundered against “the legally mandated delivery of the middle class into a kind of Chicago stockyards of insurance.” He vowed to defy it, even if he must become the country’s most famous insurance criminal.

Putting aside its irrational animus for insurers, the left has a point. The insurance industry wouldn’t support the bill absent the individual mandate. In fact, the mandate is all that stands between the companies and a death spiral. By requiring the companies to cover people with pre-existing conditions, the bill creates an incentive for people to drop insurance until they get sick—unless the state forces them to do otherwise.

Howard Dean’s constant refrain now is that the bill isn’t reform. He’s right. It is an incoherent grab bag that doesn’t improve on the current system—it just adds to it. As Yuval Levin writes, “What’s left of the bill compels universal participation in a system that everyone agrees is a failure without reforming that system, and even exacerbates its foremost problem—the problem of exploding costs.”

The individual mandate is what barely holds the bill together—and, tellingly, invokes the ire of both sides. The right and independents already hated the bill. With the left starting to hate it, too, it’s almost unanimous. A new Wall Street Journal/NBC poll found support at 32 percent. How long before some poll finds it in the 20s?

Practically the only people who think passing the bill in its current form is a good idea are Democratic congressmen. Much better to take Dean’s advice and dump it. The left and right can continue to battle it out over what constitutes true reform, with the voters ultimately deciding. In the meantime, everyone will be spared a more perverse version of the status quo, prominently featuring the hated individual mandate.

- end of initial entry -

Ben W. writes:

If the healthcare bill does not pass, or is junked, what is Obama’s raison d’etre? He’s effectively a lame duck president in his first term! Here’s my prediction. He’s a one term president. He’s cooked, he’s done. And he will become our historical anomaly, the sole black president …

LA replies:

A plausible and pleasant thought. But let us remember that Clinton invested as much political capital in health care nationalization as Obama, lost big-time, and went on to become a two-term president—the first Democrat to be elected to and to serve exactly two terms and to leave office in functioning health since Andrew Jackson. And he probably would have been elected to a third term if he could have run.

A. Zarkov writes:

Mr. Auster writes, ” … notice how the editor of the supposed flagship magazine of American conservatism writes off the Constitution. Indeed, it is fair to say that in Lowry’s entire career, he has shown precisely zero awareness of and zero concern about the perversions of the Constitution that have allowed the modern liberal state to come into existence.”

Amen. Anyone with a grasp of history and civics should know that the individual mandate exceeds Congressional authority. I was absolutely stunned when I first read about it.

Lowry’s comment: “If the Constitution weren’t all but a dead letter on such questions … ” shows he’s an ignoramus. For one thing, the Supreme Court decisions in US v. Lopez (1995) and US v. Morrison (2000) show that Congress does not have plenary police power even in this modern era of Commerce Clause jurisprudence. He should also realize that the Supreme Court is sensitive to public opinion, and that the court is very unlikely to go through the contortions necessary to uphold the mandate. It’s just too easy for the court to strike it down and make the populace happy. Why would the court want to look ridiculous and make itself unpopular? For what? To make Obama happy?

All that being said, the increase in Congressional power since the New Deal is breathtaking. Let’s recall that the Volstead Act (Prohibition) required the 18th Amendment to the Constitution. In other words, Congress (as the Constitution was understood back then ) lacked the authority to prohibit the manufacture and sale of intoxicating liquors. Notice that the Interstate Commerce Clause did not enter the picture. Today virtually any activity is said to affect interstate commerce and therefore Congress can regulate it, and regulation includes prohibition. But so far “activity” has meant something beyond merely existing as a human being.

I’m not sure what the Democrats can do to save this one. If the Senate passes the bill without the public option, the House might very well not vote for it. Remember the vote in the House was very close. They could easily lose 4 representatives. On the other hand, if they can put the public option back in during reconciliation, and avoid the need for a Senate cloture vote, that might do the trick. I’m simply not familiar enough with minutia of Congressional rules to say any more.

LA replies:

That’s an excellent point. The Interstate Commerce Clause would seem to have been tailor-made for a Congress seeking to prohibit the manufacture and sale of liquor, since any liquor that crossed state lines would come under the Clause. But the Clause was not used.

However, I’m less certain than I used to be that the mandate will be thrown out. At our monthly traditionalist conservative meeting in New York this week, when I made the same point as Mr. Zarkov and said that there is no way that the mandate could pass constitutional muster, someone mentioned a Supreme Court case from the 1940s in which the Court found that Congress had the power to regulate what a farmer was doing with his land, even though he was raising the crops solely for his personal use. We weren’t sure, but I guessed that the reasoning was something like this: by not selling his crops on the market, the farmer was indirectly affecting prices on the market, which would ultimately affect interstate commerce. Of course it’s completely absurd. But if it’s true that such reasoning has been used before, then it could be used again, and the Court could hold that a person’s non-purchase of medical insurance affects the price of medical insurance and that this is part of interstate commerce.

The participant at our meeting who brought up the 1940s case did not know its name. If anyone recognizes the case and knows its name so I can look it up, please let me know.

Lydia McGrew writes:
Subject: commerce clause wheat case

I’m sure you’re going to get a bunch of people writing with this info., but …

Wickard v. Filburn

(says Wikipedia)

Antonin Scalia has, if I recall correctly, ridiculed this precedent.

LA replies:

You’re the first! Thank you.

[Note: See A. Zarkov’s comment below explaining Wickard v. Filburn.]

Paul K. writes:

You wrote: “And [Clinton] probably would have been elected to a third term if he could have run.”

And, if I knew then what I know now, I would have voted for him for that third term. As a card-carrying Clinton hater it galls me to say that, but it seems we have been fated, since Reagan, to have every president make his predecessor look good in comparison.

Stephen T. writes:

Ben W. writes:

“If the healthcare bill does not pass, or is junked, what is Obama’s raison d’etre?”

That one’s easy: Amnesty for illegal aliens. You don’t have to be psychic to see this coming. It’s the obvious Plan B and sort of the perfect, all-purpose consolation prize. Democrats in Congress will want to hand it to him as an absolute necessity for their president to score some sort of legislative victory after the big health care blunder. And for Obama himself, it’s a powerful knock-down payback against the huge block of white middle-class America who tended not to support Obamacare. One size fits all.

LA replies:

But if the health care bill does not pass, despite the fact that the Obamacrats wanted to pass it with every atom of their being, the same could happen with amnesty.

December 19

A. Zarkov writes:

I have posted before on VFR concerning the mandate, and why Wickard v. Filburn would not give Congress the authority to enact the mandate. But I see the need to elaborate further.

In 1938 Congress passed the Agricultural Adjustment Act (“The Act”) (replacing the 1933 version which was found unconstitutional) to support wheat prices. Prices fell during the Depression and farmers suffered. To keep prices up, the Act controlled the amount of wheat grown in the US by giving farmers specific allotments as to how many acres they could have under cultivation. Farmer Filburn’s allotment was 11.1 acres, but he planted 23 acres in violation of the act. However Filburn claimed he did not sell the excess wheat he cultivated, instead he used it to feed his livestock, and to make flour for home consumption. He argued (through his lawyers) that since the excess did not enter interstate commerce, Congress had no authority to limit the wheat he grew for use internal to his enterprise. The Supreme Court disagreed and held that the excess wheat did affect interstate commence. After all had Filburn not grown excess wheat, he would not have sold any or even bought some, and this would affect interstate commerce.

Conservatives need to understand the lasting significance of Wickard v. Filburn. This decision opened the floodgates of federal intervention into the lives of Americans. The monster we now face; one which is now trying to transform every facet of our lives, was hatched in this 1942 decision. Many of the steps expanding the federal power during the last sixty years have gotten their legitimacy from this decision. However a careful reading shows that Wickard, as extreme as it is, is not infinitely expansive, and certainly does not provide constitutional authority for the health insurance individual mandate. This is because Wickard applies to an activity that could possibly affect interstate commerce. Farmer Filburn was engaged in an activity: growing wheat. He was operating a business enterprise that used wheat as one of the factors of production; he used the excess wheat to feed livestock—livestock he then sold. By contrast, mere existence as a human being is not an activity affecting commerce, otherwise Congress could have ordered every American to buy a loaf of bread every day to increase the demand for wheat and thus boost prices. The Commerce Clause gives Congress the power to regulate commerce, not require it. This distinction seems lost on many people, even some law professors.

LA replies:

Thank you very much for this. You’re right. As horrible as the Wickard decision is, any analogy between it and the insurance mandate breaks down over the fact that Filburn was actually growing wheat and using it; and the government was saying, “You’re growing too much wheat, you must grow less.” There is no analogy between that and a person simply existing and being told by the government that he must purchase medical insurance.

So, I happily return to the point I made at the New York City meeting: I cannot see any way in this universe that the mandate will survive constitutional scrutiny. And if the Supreme Court did uphold it, that would be an openly revolutionary act, unlike anything that has happened in our country’s history, and it would be impossible to predict what would happen then.

Posted by Lawrence Auster at December 18, 2009 05:34 PM | Send