Lost among the frenzy of last Saturday’s health care debate were two discordant notes within the Republican caucus.  Both were the brainchild of Rep. John Shadegg (R-AZ), who challenged Minority Leader John Boehner for his position during last winter’s the 2006 leadership elections.  I was a Shadegg guy then.  Now I’m glad the caucus voted for the other guy.

First, Shadegg chose to use his Chief of Staff’s child as a prop during his speech on the bill.  Holding the 7-month-old little girl in his arms, Shadegg claimed to give voice for her unspoken thoughts on the legislation:

“Maddy believes in freedom,” Mr. Shadegg said, as his chief-of-staff’s daughter reached toward the microphone. “Maddy likes America because we have freedom.”

He added, “She came here to say she doesn’t want the government to take over health care … She doesn’t want a health care bill that will cost $1.5 trillion.” And he said that if the bill passes, Maddy knows her mother will lose her health insurance.

In honor of the 20th anniversary of the fall of the Berlin Wall, Marque’s Letters brings you President Ronald Reagan’s speech on June 12, 1987.  While it did not bring down the Wall, it reiterated the West’s commitment to the freedom of the people of Eastern Europe, a principle that Reagan made the centerpiece of his foreign policy.  The throngs of Berliners pouring over the Wall were the apotheosis of Reagan’s vision, and the fulfillment of the hopes and prayers by free and unfree men and women around the world.  Take a minute to appreciate your freedom, pray for those who are unfree, and remember that it can all change – for good or evil – in a blink of an eye, without eternal vigilance.

Chancellor Kohl, Governing Mayor Diepgen, ladies and gentlemen: Twenty-four years ago, President John F. Kennedy visited Berlin, speaking to the people of this city and the world at the City Hall. Well, since then two other presidents have come, each in his turn, to Berlin. And today I, myself, make my second visit to your city.

We come to Berlin, we American presidents, because it’s our duty to speak, in this place, of freedom. But I must confess, we’re drawn here by other things as well: by the feeling of history in this city, more than 500 years older than our own nation; by the beauty of the Grunewald and the Tiergarten; most of all, by your courage and determination. Perhaps the composer Paul Lincke understood something about American presidents. You see, like so many presidents before me, I come here today because wherever I go, whatever I do: Ich hab noch einen Koffer in Berlin. [I still have a suitcase in Berlin.]

Our gathering today is being broadcast throughout Western Europe and North America. I understand that it is being seen and heard as well in the East. To those listening throughout Eastern Europe, a special word: Although I cannot be with you, I address my remarks to you just as surely as to those standing here before me. For I join you, as I join your fellow countrymen in the West, in this firm, this unalterable belief: Es gibt nur ein Berlin. [There is only one Berlin.]

Behind me stands a wall that encircles the free sectors of this city, part of a vast system of barriers that divides the entire continent of Europe. From the Baltic, south, those barriers cut across Germany in a gash of barbed wire, concrete, dog runs, and guard towers. Farther south, there may be no visible, no obvious wall. But there remain armed guards and checkpoints all the same–still a restriction on the right to travel, still an instrument to impose upon ordinary men and women the will of a totalitarian state. Yet it is here in Berlin where the wall emerges most clearly; here, cutting across your city, where the news photo and the television screen have imprinted this brutal division of a continent upon the mind of the world. Standing before the Brandenburg Gate, every man is a German, separated from his fellow men. Every man is a Berliner, forced to look upon a scar.

President von Weizsacker has said, “The German question is open as long as the Brandenburg Gate is closed.” Today I say: As long as the gate is closed, as long as this scar of a wall is permitted to stand, it is not the German question alone that remains open, but the question of freedom for all mankind. Yet I do not come here to lament. For I find in Berlin a message of hope, even in the shadow of this wall, a message of triumph.

In this season of spring in 1945, the people of Berlin emerged from their air-raid shelters to find devastation. Thousands of miles away, the people of the United States reached out to help. And in 1947 Secretary of State–as you’ve been told–George Marshall announced the creation of what would become known as the Marshall Plan. Speaking precisely 40 years ago this month, he said: “Our policy is directed not against any country or doctrine, but against hunger, poverty, desperation, and chaos.”

In the Reichstag a few moments ago, I saw a display commemorating this 40th anniversary of the Marshall Plan. I was struck by the sign on a burnt-out, gutted structure that was being rebuilt. I understand that Berliners of my own generation can remember seeing signs like it dotted throughout the western sectors of the city. The sign read simply: “The Marshall Plan is helping here to strengthen the free world.” A strong, free world in the West, that dream became real. Japan rose from ruin to become an economic giant. Italy, France, Belgium–virtually every nation in Western Europe saw political and economic rebirth; the European Community was founded.

In West Germany and here in Berlin, there took place an economic miracle, the Wirtschaftswunder. Adenauer, Erhard, Reuter, and other leaders understood the practical importance of liberty–that just as truth can flourish only when the journalist is given freedom of speech, so prosperity can come about only when the farmer and businessman enjoy economic freedom. The German leaders reduced tariffs, expanded free trade, lowered taxes. From 1950 to 1960 alone, the standard of living in West Germany and Berlin doubled.

Where four decades ago there was rubble, today in West Berlin there is the greatest industrial output of any city in Germany–busy office blocks, fine homes and apartments, proud avenues, and the spreading lawns of parkland. Where a city’s culture seemed to have been destroyed, today there are two great universities, orchestras and an opera, countless theaters, and museums. Where there was want, today there’s abundance–food, clothing, automobiles–the wonderful goods of the Ku’damm. From devastation, from utter ruin, you Berliners have, in freedom, rebuilt a city that once again ranks as one of the greatest on earth. The Soviets may have had other plans. But my friends, there were a few things the Soviets didn’t count on–Berliner Herz, Berliner Humor, ja, und Berliner Schnauze. [Berliner heart, Berliner humor, yes, and a Berliner Schnauze.]

In the 1950s, Khrushchev predicted: “We will bury you.” But in the West today, we see a free world that has achieved a level of prosperity and well-being unprecedented in all human history. In the Communist world, we see failure, technological backwardness, declining standards of health, even want of the most basic kind–too little food. Even today, the Soviet Union still cannot feed itself. After these four decades, then, there stands before the entire world one great and inescapable conclusion: Freedom leads to prosperity. Freedom replaces the ancient hatreds among the nations with comity and peace. Freedom is the victor.

And now the Soviets themselves may, in a limited way, be coming to understand the importance of freedom. We hear much from Moscow about a new policy of reform and openness. Some political prisoners have been released. Certain foreign news broadcasts are no longer being jammed. Some economic enterprises have been permitted to operate with greater freedom from state control.

Are these the beginnings of profound changes in the Soviet state? Or are they token gestures, intended to raise false hopes in the West, or to strengthen the Soviet system without changing it? We welcome change and openness; for we believe that freedom and security go together, that the advance of human liberty can only strengthen the cause of world peace. There is one sign the Soviets can make that would be unmistakable, that would advance dramatically the cause of freedom and peace.

General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!

I understand the fear of war and the pain of division that afflict this continent– and I pledge to you my country’s efforts to help overcome these burdens. To be sure, we in the West must resist Soviet expansion. So we must maintain defenses of unassailable strength. Yet we seek peace; so we must strive to reduce arms on both sides.

Beginning 10 years ago, the Soviets challenged the Western alliance with a grave new threat, hundreds of new and more deadly SS-20 nuclear missiles, capable of striking every capital in Europe. The Western alliance responded by committing itself to a counter-deployment unless the Soviets agreed to negotiate a better solution; namely, the elimination of such weapons on both sides. For many months, the Soviets refused to bargain in earnestness. As the alliance, in turn, prepared to go forward with its counter-deployment, there were difficult days–days of protests like those during my 1982 visit to this city–and the Soviets later walked away from the table.

But through it all, the alliance held firm. And I invite those who protested then– I invite those who protest today–to mark this fact: Because we remained strong, the Soviets came back to the table. And because we remained strong, today we have within reach the possibility, not merely of limiting the growth of arms, but of eliminating, for the first time, an entire class of nuclear weapons from the face of the earth.

As I speak, NATO ministers are meeting in Iceland to review the progress of our proposals for eliminating these weapons. At the talks in Geneva, we have also proposed deep cuts in strategic offensive weapons. And the Western allies have likewise made far-reaching proposals to reduce the danger of conventional war and to place a total ban on chemical weapons.

While we pursue these arms reductions, I pledge to you that we will maintain the capacity to deter Soviet aggression at any level at which it might occur. And in cooperation with many of our allies, the United States is pursuing the Strategic Defense Initiative–research to base deterrence not on the threat of offensive retaliation, but on defenses that truly defend; on systems, in short, that will not target populations, but shield them. By these means we seek to increase the safety of Europe and all the world. But we must remember a crucial fact: East and West do not mistrust each other because we are armed; we are armed because we mistrust each other. And our differences are not about weapons but about liberty. When President Kennedy spoke at the City Hall those 24 years ago, freedom was encircled, Berlin was under siege. And today, despite all the pressures upon this city, Berlin stands secure in its liberty. And freedom itself is transforming the globe.

In the Philippines, in South and Central America, democracy has been given a rebirth. Throughout the Pacific, free markets are working miracle after miracle of economic growth. In the industrialized nations, a technological revolution is taking place–a revolution marked by rapid, dramatic advances in computers and telecommunications.

In Europe, only one nation and those it controls refuse to join the community of freedom. Yet in this age of redoubled economic growth, of information and innovation, the Soviet Union faces a choice: It must make fundamental changes, or it will become obsolete.

Today thus represents a moment of hope. We in the West stand ready to cooperate with the East to promote true openness, to break down barriers that separate people, to create a safe, freer world. And surely there is no better place than Berlin, the meeting place of East and West, to make a start. Free people of Berlin: Today, as in the past, the United States stands for the strict observance and full implementation of all parts of the Four Power Agreement of 1971. Let us use this occasion, the 750th anniversary of this city, to usher in a new era, to seek a still fuller, richer life for the Berlin of the future. Together, let us maintain and develop the ties between the Federal Republic and the Western sectors of Berlin, which is permitted by the 1971 agreement.

And I invite Mr. Gorbachev: Let us work to bring the Eastern and Western parts of the city closer together, so that all the inhabitants of all Berlin can enjoy the benefits that come with life in one of the great cities of the world.

To open Berlin still further to all Europe, East and West, let us expand the vital air access to this city, finding ways of making commercial air service to Berlin more convenient, more comfortable, and more economical. We look to the day when West Berlin can become one of the chief aviation hubs in all central Europe.

With our French and British partners, the United States is prepared to help bring international meetings to Berlin. It would be only fitting for Berlin to serve as the site of United Nations meetings, or world conferences on human rights and arms control or other issues that call for international cooperation.

There is no better way to establish hope for the future than to enlighten young minds, and we would be honored to sponsor summer youth exchanges, cultural events, and other programs for young Berliners from the East. Our French and British friends, I’m certain, will do the same. And it’s my hope that an authority can be found in East Berlin to sponsor visits from young people of the Western sectors.

One final proposal, one close to my heart: Sport represents a source of enjoyment and ennoblement, and you may have noted that the Republic of Korea–South Korea–has offered to permit certain events of the 1988 Olympics to take place in the North. International sports competitions of all kinds could take place in both parts of this city. And what better way to demonstrate to the world the openness of this city than to offer in some future year to hold the Olympic games here in Berlin, East and West? In these four decades, as I have said, you Berliners have built a great city. You’ve done so in spite of threats–the Soviet attempts to impose the East-mark, the blockade. Today the city thrives in spite of the challenges implicit in the very presence of this wall. What keeps you here? Certainly there’s a great deal to be said for your fortitude, for your defiant courage. But I believe there’s something deeper, something that involves Berlin’s whole look and feel and way of life–not mere sentiment. No one could live long in Berlin without being completely disabused of illusions. Something instead, that has seen the difficulties of life in Berlin but chose to accept them, that continues to build this good and proud city in contrast to a surrounding totalitarian presence that refuses to release human energies or aspirations. Something that speaks with a powerful voice of affirmation, that says yes to this city, yes to the future, yes to freedom. In a word, I would submit that what keeps you in Berlin is love–love both profound and abiding.

Perhaps this gets to the root of the matter, to the most fundamental distinction of all between East and West. The totalitarian world produces backwardness because it does such violence to the spirit, thwarting the human impulse to create, to enjoy, to worship. The totalitarian world finds even symbols of love and of worship an affront. Years ago, before the East Germans began rebuilding their churches, they erected a secular structure: the television tower at Alexander Platz. Virtually ever since, the authorities have been working to correct what they view as the tower’s one major flaw, treating the glass sphere at the top with paints and chemicals of every kind. Yet even today when the sun strikes that sphere–that sphere that towers over all Berlin–the light makes the sign of the cross. There in Berlin, like the city itself, symbols of love, symbols of worship, cannot be suppressed.

As I looked out a moment ago from the Reichstag, that embodiment of German unity, I noticed words crudely spray-painted upon the wall, perhaps by a young Berliner: “This wall will fall. Beliefs become reality.” Yes, across Europe, this wall will fall. For it cannot withstand faith; it cannot withstand truth. The wall cannot withstand freedom.

And I would like, before I close, to say one word. I have read, and I have been questioned since I’ve been here about certain demonstrations against my coming. And I would like to say just one thing, and to those who demonstrate so. I wonder if they have ever asked themselves that if they should have the kind of government they apparently seek, no one would ever be able to do what they’re doing again.

Thank you and God bless you all.

Ronald Reagan – June 12, 1987

The House Ways and Means Committee confirmed today that the mandate provisions in Pelosicare will follow the form we’ve all expected: obey or go to jail.  While it’s an unconstitutional, brutal, and outrageous provision, it does crystallize the legal issues in a way the Senate bill does not.  These people have abandoned any pretense of addressing public concerns.  They want their power and they want it now.

For those who are following the mandate saga, there were some outstanding contributions to the debate in recent days:

• James Capretta explains how the unprecedented mandate hides real costs in the program, to the tune of $1.5 trillion.
• Ken Klukowski lays out the case for unconstitutionality in the Politico.
• The whole letter from the Joint Committee on Taxation is worthwhile reading, as it lays out exactly what happens to an American who fails to comply.  The picture painted is frighteningly similar to the image I first got when thinking about this issue: debtor’s prison.

See my previous commentary on the health insurance mandate here, here, and here.

A few worthy thoughts gathered from the internets:

• Dan Gerstein of Forbes Magazine explores the makeup of the White House staff and the impact it may be having on the President’s performance.  Comprised primarily of what Gerstein quotes an insider to be “political hacks,” the staff’s tendency to fight, win, and be snarky when compromise, concession, or moderation might be the smarter play might explain a lot about Obama’s tin ear for the public mood.  Of course, it does beg the question – if your whole staff is made up of political consultants, shouldn’t they be able to win you either New Jersey or Virginia?

• In the “truly creepy” department, I bring you the expanded list of honorific Obama song and dance routines from our nation’s schoolchildren, courtesy of Big Hollywood.  Easily the oddest lyric, although probably also the silliest and least-disturbing:

You don’t believe me, I hear you say
But Barack’s as Irish, as was JFK
His granddaddy’s daddy came from Moneygall
A small Irish village, well known to you all

Right.

• In case this doesn’t give you enough night terrors about what your kids are larning in dem skools, the U.S. military would like to have a word with you.  They tell us that fully 75% of all Americans aged 17-24 are ineligible to join the Armed Forces.  Why?  They’re too fat, stupid, or corrupt.  Since a good proportion of those who are eligible will choose other career paths, this is an incredibly difficult challenge for military recruitment — either lower the standards for the greatest fighting force the world has ever seen, or spend more and more on recruitment to chase fewer and fewer worthy candidates.  And of course, the rest of us get to deal with the rejects.  Oh, goody.

• Rich Lowry explains why Obama will ignore my recommendation to go to Berlin, calling it the “most telling nonevent of his presidency.”  I agree.  During her White House visit yesterday, German Chancellor Angela Merkel went out of her way to thank the American people for their support in the years leading up to German unification.  Our President responded by closing the press briefing.

• Speaking of travel, Jay Nordlinger highlighted a comment by David Pryce-Jones regarding the emerging lefty tourist habit of the grand tour of Iran.  It’s so good, I hope Mr. Pryce-Jones will forgive my copying it wholesale here:

This anthology passage has come to mind several times recently in connection with present-day fellow-travellers visiting Iran in just that same spirit of willing self-deception. Here are advocates of human rights enthusing over the general happiness of Iranians even while disgusting crimes of murder and rape are routine in the prisons. Here are ecologists promoting windmills everywhere at home, obsessed with their carbon footprint while oblivious to the Iranian nuclear program. Socialists and Leftists in a permanent fury about American foreign policy have nothing to say about Iranian sponsorship of terror far and wide. Pacifists and aesthetes are so eager to see the splendours of Qom and Mashhad that they are oblivious to the Islamist Republic’s testing of long-range missiles and repeated threats to exterminate its enemies. Feminists eager to uncover gender discrimination in their own sphere respond to the plight of Iranian women by praising the attractive colours of their clothing. Tourism to Iran is apparently the latest fashion among rich Westerners, and they come back saying that the country is peaceful, prosperous, no danger to anyone but altogether a brilliant success. My dear, let’s meet up at Isfahan, you have to see those mosques.

History is riddled with examples of liberals exhibiting their moral superiority through brave acts of monied extravagance.  But it’s hard for me to understand why these politically-motivated tourist escapades would deliberately ignore severe human suffering and obvious government oppression.  Maybe sleeping mere minutes away from tortured political prisoners has a certain sort of thrill, but it must be reserved for those who feel thrills going up their legs when they hear President Obama speak.

As you know, this blog has explored several ways whereby the proposed mandate that everyone obtain health insurance is unconstitutional.  Ignoring entirely the advice of this blog, the Senate Finance Committee reported out a bill that included a mandate, albeit a watered-down one.  In fact, it appears that any bill that will be voted on by Congress this fall will contain a mandate for individuals to obtain health insurance.  This begs the question – if a health insurance mandate is passed and signed by the President, what does it really matter?  Sure, Congress has pushed the envelope of constitutionality in the past, and rarely has it been struck down.  But isn’t this just an academic debate among legal eggheads?

Sadly, the answer is no.  Passing an unconstitutional health care mandate can only poison American politics, whether it survives a court challenge or not.  Let me explain why.

Nightmare Scenario I:  A Health Care Mandate Withstands Court Scrutiny

American jurisprudence is essentially a process of accretion. Accretion is a word used more frequently in geology, describing the layering of rock over the ages.  Imagine yourself standing on the edge of the Grand Canyon, staring at the wondrous palette of color and light.  You see before you the dozens of layers of soil, rock, and sand that have been laid down, one upon the other.  At the time each layer was established, those who were there to see it knew only of the layer beneath, or even the present layer being created.  With a little work, they could dig slightly deeper to see one or two layers below that.  But they stood on all the layers that went before them, even if they did not know them by sight.  They may have heard stories of them, or seen pictures, but they could not truly know the deepest rock upon which they stood.  And the same goes for you — though you stand on the top of all the layers laid bare by the Canyon, walk away and you will know only the rocks of yesterday, and the soils of today.

So it is with the law.  While we like to think of philosophies like originalism and natural law as a harkening back to the way things used to be, in many ways that’s not correct.  No serious legal thinker today advocates a return of U.S. law or its governing principles to the way our Founders thought of themselves.  Sure, the concepts of checks and balances, separation of powers, federalism, and limited government spring from the constitutional well, and we would be wise to drink from it more often.  But while James Madison did not preconceive the Federal Communications Commission, he also couldn’t conceive of the telephone at all.  Jefferson’s dream of an agrarian society did not include ConAgra or ADM.  And while Lincoln’s vision for America included a transcontinental railroad stretching across the frontier, his imagination could not stretch as far as the moonshot at the center of JFK’s New Frontier.  This isn’t a pitch for a “living constitution,” but it is a recognition that the very things we consider America’s greatest achievements have forced American political leaders to adjust the structure of our government to fit these circumstances.

In the early years of the republic, the changes sought were enshrined in formal constitutional amendments.  When we decided that women should vote, we passed the 19th Amendment.  When we believed that slaves should be free, we passed the 13th Amendment.  When we determined that the federal government couldn’t be funded on tariffs and excises alone, we passed the 16th Amendment.  No one believed that these things could be accomplished through a court case — it took action by the people to alter the nation’s charter in such dramatic ways.

That all changed sometime around the middle of the 20th Century.  After a series of cases interpreting the New Deal expanded the scope of permissible federal regulation under the Commerce Clause, the Congress felt emboldened to take on most any economic challenge it might consider worthy of federal treatment.  While a few cases in recent  years have placed limits on that assumption, it remains a rather safe one.  Similarly, the cases enforcing the revolution in civil rights in the 1950s-70s, together with the Warren Court’s expansion of criminal rights under the Due Process Clause, gave litigants new confidence that the courts could (and would) do what they could not do before the legislature.  That’s not to pass judgment on any of the substantive decisions made by the Court during those years, many of which embody high principles and achieved just outcomes.  But from a procedural perspective, they lifted government off its constitutional moorings and into a land of judicial fiat.  Language mattered less than meaning, and meaning was suddenly found in penumbras and political movements that could never be obtained in the text itself.

Consider now the aspirations of the “originalism” of modern jurists.  When Justice Scalia hears a case about the Federal Communications Commission, he does not inquire whether the very idea of independent executive agencies, free to operate beyond the direction of the chief executive and governed by individuals not subject to removal by the president, is even remotely allowed by the Constitution.  Rather, he inquires about issues of administrative law — an entire body of rules that depend on the assumption that administrative agencies themselves are constitutional.  No one questions this assumption.  I do not seek to question it today.  But there lies the accretion.  Some court decades before decided that independent administrative agencies were not per se unconstitutional.  The next court decides that such agencies must behave in a certain manner to avoid becoming unconstitutional.  The court after that decides whether the independent agency met the earlier court’s expectations.  And so on, until the idea of questioning the existence and validity of the agency itself becomes absurd — a matter of precedent that is buried under volumes of smaller, precise decisions about agency behavior.  Courts detest upsetting the precedential applecart, even to the point of consciously avoiding principled objections to the basis of the precedent.

Now think about the foundation we are establishing with the health care mandate.  A constitutional challenge to the mandate would embrace one or more of the arguments I laid out in my earlier posts:

1) the Commerce Clause does not empower the federal government to require citizens to engage in commerce;

2) the Due Process Clause does not permit the government to order a person to give his cash to a third party;

3) the First Amendment does not permit government to force one to spend her money in a manner that violates her religious beliefs;

4) the Article I power to tax does not include a power to require an individual to give his property directly to a third party; or

5) the Thirteenth Amendment does not permit government to require a citizen to give the fruits of his labor to another on condition of his citizenship.

For a Court to deny such a challenge, it must do one of two things — either say that the  mandate does not violate these principles, or that the mandate does violate these principles, but the principles are not protected by the Constitution.  Either of these decisions would be catastrophic for the cause of liberty.  Take Argument 1, for example.  If a court says that the health insurance mandate does not require a citizen to engage in commerce, it is simply ignoring the plain language of the statute.  Of course the statute requires one to engage in commerce — if you don’t buy health insurance today, you must buy it tomorrow or be punished.  Buying a health insurance policy is about as classic a commercial transaction as there is.  Denying the violation here, in fact, is tantamount to denying the principle, because it says to the world that the Court will go to any lengths to permit Congressional action in this sphere.  The plain evisceration of the principle would be equally destructive, then.  For the Supreme Court to say that Congress can force a citizen to engage in commerce is to lift all regulatory limitations from the federal leviathan.  Congress wants you to buy an electric car – you must buy an electric car.  Congress wants you to buy a computer – you buy a computer.  Congress wants you to visit a national park this year – you visit a national park.  Don’t have the money?  Doesn’t matter – Congress say, you do.

I won’t belabor this by going through the analysis with each of the five principles above, but feel free to do it yourself – and be scared.  Very scared.

Nightmare Scenario II: A Health Care Mandate Is Struck Down by the Courts

So you’re thinking: Marque, no court in America would allow Congress to do those things.  Surely they would strike it down, at least on one of those five grounds.  Okay, I say, I agree with you.  So assume it does that.  Now what?

First you have to consider what the world will be like when a court (likely the Supreme Court) makes a final determination on this issue.  It will likely be at least one year, possibly two or three, after the law originally passes.  Based on the timeline laid out in the legislation considered to date, that means we’ll be well into the transition period to Obamacare.  The government insurance bureaucracy will be well-established, if not printing policies and taking payments.  The health care industry will be consolidating like mad, trying to create insurance supergiants that might possibly be able to compete with the public “option” plan.  Thousands of doctors will be planning their exit from the medical field, and hundreds of hospitals will be deciding if they can stay in business under the absurd cost controls that will be imposed.  Despite the public outcry surrounding the bill, Americans will largely be adapting to their new health insurance overlords.  Most likely, no one will have yet been forced to make any uncomfortable decisions, although premiums might be spiking in anticipation of the incipient government mandates.  Like Americans tend to do, they will be making the best of the situation, and given the long phase-in of the bill (timed to ensure no pain before Obama’s reelection effort in 2012), they might even be OK with it.

The one thing everyone is assuming, however, is that they will be forced to buy insurance.  Their financial advisors are telling them that.  Their employers are telling them that.  Their friends complain about it around the water cooler (although some of them are happy that all those freeloaders will finally be forced to kick in their fair share).  Two or three years out from the legislative wars of 2009, Americans are largely OK with the idea that they will have to buy health insurance from someone.  After all, we all have to buy auto insurance, right?

Suddenly, the piddly court case filed by some public interest law firm like the Institute for Justice gets before the Supreme Court.  To the media’s stunned surprise, the Court seems to take it seriously.  Weeks, nay months, of speculation ensues, and the punditocracy assumes that the Court could never, ever undo the centerpiece of Obama’s health care masterpiece.  It’s the only thing keeping costs under control, they cry!  It’s only fair for everyone to participate, they fume!  Without the mandate, the whole house of cards may fall, they scream!  Then, the unthinkable happens.  5-4, the mandate is struck down.

Hooray, right?  WRONG.  Two years is an eternity in politics, and in that eternity the American health care system will have been remade.  Small and large businesses alike will have begun paying for insurance for their employees.  Insurers will have adapted to the new reality, welcoming the new insureds to the mix and making fundamentally different business decisions based on the law’s byzantine provisions.  The government bureaucracy will have printed new rules, established far-reaching regulations and begun remaking the way we receive health care.  It will be virtually impossible to return to the way things were before the mandate — it’s just too big to fail, and too much money will have been spent in furtherance of the Obamacare vision.

How to fix the mandate, therefore, will become the central focus of Congress.  I say this regardless of whether Republicans or Democrats are in charge.  The momentum behind the program will simply be too great to turn back, and the only way to go forward is to patch things up.  But how can you fix the mandate, you ask?  Easy – you do something constitutional that has the same effect.  To wit:

1.  Congress nationalizes health care — premiums become taxes.  Remember that the only reason the mandate fails in the tax analysis is that the citizen is forced to pay a third party.  If the citizen is forced to pay the government, the government has total discretion to do what it will with the funds.  Essentially, this would make everyone part of Medicare.  It’s exactly what everyone is afraid of.  It’s Canada, Great Britain, and Obama’s heart’s desire.  Congratulations, conservatives — you just backed into single payer.

2.  Congress ends the individual mandate — and makes it a corporate/government mandate. The Supreme Court has never given corporations the same constitutional protections it gives individuals.  Thus, by forcing employers to grant health care to their employees, they are regulating commerce, not coercing individuals to buy something against their will.  What about the unemployed?  A massive expansion of Medicaid has the federal government picking up the tab (likely funded by the states, stealth taxes on health plans, or on “the rich”).  The cost of health insurance skyrockets as all the same problems in the current system are writ large, and the new taxes cripple the economy.

3.  Congress conditions receipt of all federal funds on enrollment in the public option. While the Supreme Court might restrict Congress’ ability to regulate commerce, it will almost never touch Congress’ ability to attach strings to its spending.  Thus, Congress requires everyone receiving federal funds — whether it be a student taking out a loan, a construction company receiving a federal contract, or a university taking a research grant — to participate in the public option (or otherwise obtain health insurance).  Even worse, the government requires everyone to report whether he has obtained health insurance on his tax return — giving the feds a ready-made list of folks to target for enforcement.  This doesn’t cover everyone, but it does create a federal health insurance behemoth so expansive that it becomes a de facto mandate.  No one wants to think about whether it’s touched federal funds in some oblique way that might require it to provide health insurance, so every company and individual obtains health insurance out of an abundance of caution.  The shadow mandate is just as coercive.

4.  Pass a constitutional amendment. Ironically, the crisis of the missing mandate may be the only kind of political earthquake that could give rise to a meaningful constitutional amendment in today’s Washington.  Since the political establishment believes that it can do pretty much whatever it wants these days, the only calls for amending the Constitution in the last 20 years have been for limitations on government power (a balanced budget amendment; a 2/3 majority requirement for raising taxes).  But if Congress doesn’t like the options it gets from the Court in the wake of a decision against the mandate, it may fast-track a constitutional amendment to end the debate forever.  How that might be constructed and how general it might be is anyone’s guess, but with the political and economic forces that would likely be aligned in favor of saving Obamacare at this late date, it might just zoom through.  I still think the first three options above are more likely.

What is not likely is that Washington would allow a Court decision against the mandate to stand.  Too much would have been invested to allow Americans to walk away from their futures as compulsorily-insured drones.

Sigh…

So, there you have it, my friends.  It’s not just unfortunate that a bill containing an unconstitutional mandate for all of us to spend our money in undesirable ways is winding its way toward passage in Congress.  This is a legislative disaster on a scale only seen in earlier attempts at creating bloated entitlements without the political will to financially support them (Social Security; Medicare; other nations’ public health care bureaucracies).  It will poison our constitution, our health care system, or both.  Regardless, it will forever alter Americans’ relationship with their government.  It must be defeated.

Perhaps the most amazing thing to me about President Obama’s popularity tailspin is how easy it would be for him to get out of it.  People still like the guy (although that may be changing, as well) — they just don’t like his policies, and they don’t think he’s listening to them.  Any one of the following five things would improve his political standing, at virtually no political cost to him:

• Say he won’t be closing Guantanamo – yet. This is obvious to all involved, but his team’s continued insistence that he’s working toward his one-year deadline runs against the grain of most Americans (55% oppose the move, 33% support it) and makes him look silly.  Conservatives would hail this as a win, and liberals would frown that their man has gone soft.  But this isn’t a change of mind, it’s just a change of timeline — and a recognition of reality.  Behind the scenes, his team could still try to find a way out of the mess, without giving opponents the talking point.  Far better to take this “loss” now than in January when his promise comes due – and he can still close the prison at any time.  Isn’t this just the pragmatic, non-ideological perspective for which Americans elected him last November?
• End the intelligence inquisition. Most observers believe that the Administration’s continued assault on the CIA was much more about Eric Holder than Barack Obama.  It was a wildcat move by an Attorney General whose allegiances lie with the left wing.  The President has laid the groundwork for this — he’s already said we need to look forward, not backward, and he has never explicitly endorsed Holder’s escapade.  This would come a little late, but it would show the public that he’s not beholden to his base and can openly disagree with his team — something Bush never could seem to do.  Would the Left be furious?  Maybe, but this fight is so 2008, and it’s not the kind of thing you want hanging over Democrats’ heads going into a tough 2010 midterm election.  Make that double for any actual prosecutions of CIA employees, so there’s really no upside to pursuing this.  There’s plenty of upside for ending it.
• Go to Berlin on November 12th. Make a speech (he’s good at that).  Say only good things about America.  Say nice things about Ronald Reagan and Jack Kennedy.  Walk through the Brandenburg Gate.  Speak out against tyranny and oppression.  Speak harshly about Communism.  Take credit (on behalf of his country) for helping to end it.  Recommit to the defense of Europe, and call on them to help us defend the free peoples of the rest of the world.  Americans love this stuff.  No one will criticize it (except the Russians, and they don’t vote).  Everyone will say it’s a change of tone.  It will distract people from the drudgery of health care, et. al. Not doing this will get noticed, to his detriment, I believe.
• Set a deadline and keep it against Iran. Ahmadenijad is America’s boogeyman of the moment – and he’s earned it.  There is absolutely nothing redeeming about the guy, and there is no constituency in this country for coddling him and his regime.  Obama has spoken much about the need to use diplomacy to solve the situation in Iran.  To date, his understanding of diplomacy has meant ignoring a rigged election and brutal oppression; setting deadlines and watching them float by without consequence; and revealing knowledge of duplicity but showing no interest in punishing it.  He’s earned his nice guy bona fides.  No one doubts he wants to solve this thing without firing a shot.  But that sets him up perfectly to deliver a stemwinder against the most hated man on the globe.  Obama’s stern speech can set one last deadline, leaving the door open for progress on our timetable — but if Iran blows it, he’s got Congress to back him up.  Obama looks strong; his buddies in Europe can’t help but fall in line.  In short, the trap is set — the only question is, is Obama building a trap or a dollhouse?
• Publicly retrench on some element of health care reform. It’s no secret that the American public is both fatalistic and incredibly concerned about the President’s health care agenda.  He’s overpromised, overspent, and underdelivered.  But the Democrats are convinced that if they do not pass their behemoth of a public health care regime now, they will never get another chance.  I disagree – a well-designed, publicly-supported program that will pass is likely to entrench the Democrats as the “health care party” for a long time to come, giving them other opportunities to improve upon their program (assuming it works, of course).  Within the health care polling, there is an emerging path for success that scares me to death, but would save the day for the Administration.  Let’s build it from the ground up, using the great polling data from Rasmussen Reports.  The public wants more private sector competition, and they are OK with a public option that improves such competition.  They aren’t OK with a Trojan Horse public option aimed at overtaking the private sector.  People also hate the idea of forcing people to buy health care, but everyone agrees that without getting the “young invincibles” into the health insurance market, costs will go up.  Americans are more concerned with cost control than they are universal coverage.  Taking these issues together, Obama presents a new way forward.  He publicly takes a government-run public option off the table.  He then says he will only support a bill with a non-profit or member-run plan that subsidizes care on a sliding scale basis — essentially an expansion of Medicaid up to an income limit where someone could easily participate in the insurance market.  He then says that participation in the non-profit plan or some other employer-provided plan will be mandatory for all individuals who receive federal aid (in the form of student loans, grants, housing assistance, etc.).  Obama also states that anyone who is uninsured who receives care at a public hospital will automatically be enrolled in the plan, and the government will pay for her first instance of care.  That takes the sting out of the mandate — suddenly, the only people who are forced to participate are the ones who take taxpayer funds.  Now, you’ve got a public option that appears to be out of the government’s hands.  And Obama’s mandate shift will have placed the onus of the mandate on those who are already government’s “takers,” not “givers.”  And perhaps most importantly, the President would show that he’s willing to take charge and make changes in response to public concerns.  The rest of the plan — the guaranteed issue, the taxes, the Medicare cuts, the rationing – would remain.  Nothing could be more positive for the Obama Administration.  And nothing would be more harmful for the future of the country.

To quote our President’s favorite phrase, let me be clear: I have no desire for this President to recover his popularity.  While some of these changes are things I would favor in isolation, together they would give great momentum to an agenda that would threaten our future.  But I also have no expectation that this White House could bring itself to make these minor course corrections in service of their larger goals.  And thus, this nation’s fragile promise lives on.

Today’s theme is quality time:

• A high school teacher in Alexandria writes a moving, yet troubling, article in Sunday’s Washington Post, exploring why his students are about to graduate without an education (hint: it’s missing fathers and busy mothers).  The immutable, bracing tragedy of it all comes flying at you from the first sentence.  How is THIS not a national crisis worthy of a national debate?  One reason — the side on which the truth lies is out of bounds for polite discussion.
• One provocative opinion on why we spend less time with our kids these days comes from And Now You Know: it’s taxes.  I’m still thinking about how much I agree with the post — could we instead be working for lifestyle more than taxes?  are our kids merely entertaining themselves in more solitary ways? — but the fact that I’ve thought about it for a good day or two means it’s worth a look.
• Harkening back to yesterday’s post (a record day at the Letters, by the way – thanks to all who stopped by), Power Line tells us that President Obama has turned down Germany’s invitation to join its celebration of the fall of the Berlin Wall.  I’m surprised – I thought the guy was all about striking Reaganesque and Kennedyesque poses.  This Administration is willing to make a trip across the Atlantic for four and half hours of wooing Olympic officials but unwilling to party with a key ally as it remembers the epic moment of its national reunion.  Apparently all Obama wanted out of Berlin was its votes?

Western cultures have long subscribed to the tradition that anniversaries ending in 0 or 5 deserve special mention, if not celebration.  That premise goes double for the media, which has found the anniversary to be a great way to spice up a slow news day. This habit of ours seems stranger the longer you think about it, but no matter – it is what it is.

At least it is so long as your anniversary is something that the culture (or its spokespersons) consider worthy of celebration or remembrance.  But Mark Steyn reminded me that 1989 was one of the most consequential years in our history, or at least my history, and we’ve heard remarkably little in its second decennial anniversary.  Below is a list of some of the dates that have passed this year without much mention.

• February 15, 1989: The Soviet Union announces it has pulled out of Afghanistan.
• April 21 – June 4, 1989: The Tiananmen Square protests captivate the world, until they are capped by the massacre by the Chinese military.
• June 4, 1989: Solidarity wins elections in Poland, serving as the first spark to the flame of freedom that will spread across Eastern Europe.
• August 23, 1989: Two million Estonians, Latvians, and Lithuanians form the Baltic Way, a 600 km human chain that was the first major freedom demonstration within the Soviet Union.
• August 23, 1989: Hungary opens its border with Austria, creating the first chink in the Iron Curtain.
• September 10, 1989: Hungary opens its border and begins to receive East German refugees fleeing their Communist government.
• October 9, 1989: Demonstrations in Leipzig demand democratic reforms in East Germany.
• October 18, 1989: East German Chancellor Erick Honecker is forced to step down under pressure from the Soviets after failing to suppress anti-government protests.
• October 23, 1989: The Hungarian Republic is declared, ending the Communist Hungarian People’s Republic.
• November 9, 1989: The Berlin Wall falls, as East German officials end all travel restrictions to West Germany and ecstatic Germans dance in the streets together.
• November 10, 1989: The Bulgarian Communist leader is replaced by the foreign minister, who renames the party the Bulgarian Socialist Party.  Communist rule in Bulgaria ends after 40 years.
• 
• November 17, 1989: A peaceful student demonstration in Prague is attacked by riot police, sparking the Velvet Revolution in Czechoslovakia.  Within 3 days, over half a million peaceful demonstrators will fill Prague, demanding democracy.
• November 28, 1989: The Communist Party of Czechoslovakia lifts restrictions on opposition parties and agrees to hold elections.  
• December 1, 1989: The East German parliament abolishes one-party rule in the country; the East German Politburo and Chancellor Egon Krenz resign 2 days later.
• December 17-25, 1989: The Romanian Revolution drenches the country in blood for a week until Communist dictator Nicolae Ceausescu is arrested and executed by the military.  Communist rule ends in Romania, albeit more violently than elsewhere in the East.
• December 28, 1989: Vaclav Havel, a leader of the Velvet Revolution, is elected president in Czechoslovakia, ending Communist rule.

Consider the courage of those who stood against tyranny and brought down a Communist scourge that had dominated half of Europe for over 40 years.  Consider that you, dear reader, live in the nation whose steadfast defense of the West and demands for freedom for those behind the Iron Curtain gave hope to millions.  In a year when we are beset with troubles and our troops are again defending freedom against tyranny, why are we Americans not being reminded of the defeat of Communism around the world?  Do you remember how dizzying those days were — when all of our assumptions about the world were obliterated by people desperate to be free?

Take a moment to remember the heroes of 1989.  Remind a friend to do the same. The world deserves to celebrate.

The word of the day is “decline”:

• If you read nothing else for the rest of the year about the Obama presidency and the direction it is taking the country, read Krauthammer in this week’s Weekly Standard.  No, really – go read it.  I’ll wait.
• Riffing on Krauthammer’s theme, Mark Steyn dishes up lugubrious drollery as only he can.
• Introducing America to the term “downward mobility,” Robert Samuelson reminds us that Obama is, to turn a phrase, taking his eye off the ball when he tries to reform health care.  He finishes with this killer: “Some call this “reform”; no one should call it progress.”
• And despite all the talk of regression, there is still a bull market for the President’s self-regard.