On to the Supreme Court. Or just repeal the darn thing and get it over with.
P.S. – for all my lawyer-geek readers, here’s the full opinion. (h/t National Review).
Many of my more liberal friends profess to be outraged by the incipient racism behind the Arizona immigration law. Setting aside the question of whether the law actually promotes racial profiling (there are many other, better places to find good information on that question), whether such profiling is a public good is a different matter entirely. I don’t disagree that the idea of making law enforcement decisions solely on the basis of race is fraught with peril, if not outright unconstitutional. But consider the following scenarios and see how you might react:
If any of the Obama Administration’s stated reasons for closing Gitmo has emerged as its favorite, it has to be that Guantanamo is a recruiting tool for al Qaeda. This rationalization is particularly useful for the Democrats, because it simultaneously hints at the underlying cause celebre behind closing Guantanamo – that we do unspeakably evil things to those poor people at that bad place – while appearing to be a plus in the Overseas Contingency Operation against Man-Caused Disaster.
But remember that not long ago, this same Administration was moments away from creating a whole new set of al Qaeda “recruiting tools.” Back in April/May 2009, the Justice Department was ready to forego an appeal of a court order to release dozens of photos of enemy combatants, which presumably depicted them after undergoing harsh interrogation or torture. Those photos, whose release would have been unlawful under the Geneva Conventions preventing public depictions of prisoners of war, would have invariably reignited similar passions as were unleashed throughout the Middle East and Central Asia in the weeks and months after the Abu Ghraib revelations. One might recall that things got worse, not better, in Iraq at that point.
But here we had the Attorney General recommending that it not appeal to the Supreme Court a judgment by the Second Circuit that would have required the Department of Defense to release these photos. Even if it would have eventually lost, the government would have delayed disclosure for at least another year. And it was no slam dunk that it would have lost — the Court has been much more deferential (although not deferential enough) to the executive branch in its prosecution of the war than have the lower courts, particularly the forums chosen by the ACLU for its activist lawsuits.
Only after the intelligence agencies, the military, the public, and ultimately key members of Congress expressed their outrage at such a decision did the Obama Administration first delay, then indefinitely postpone release of the photos. The matter was ultimately resolved when Congress allowed the Secretary of Defense to order the photos sealed, which he did. That order was upheld by the Supreme Court.
So, the same Justice Department that is insisting on closure of Guantanamo to avoid inciting terrorist violence was ready to release photos that would surely have incited violence, and would have absent a public uprising against it. The only common element here? The ACLU and its liberal allies wanted both to happen, and for reasons utterly unrelated to the violence that may have resulted: they hate George Bush, and they are driven to remind us all of the evil that embraced our land during the dark days of his reign. Irrational? Yes. Explanatory? Without question.
True, Obama himself signed the law allowing the photos to be protected – in a rather rare reversal of policy. But Holder and his ilk at DOJ remained unabashedly opposed to the move. They have zero credibility when they attack Guantanamo as a “recruiting tool.”
No, the title does not refer to what I’ve been doing to my readers for the last month. Well, it doesn’t ONLY describe that.
What it does refer to is the very easy, quite appropriate way for Congress to deal with Lisa Jackson’s attempted blackmail of the legislative branch. It’s plain as day that EPA’s endangerment finding with regard to greenhouse gas emissions is the gun to Congress’ head, ordering them to pass cap and trade or face limitless regulation of carbon dioxide from the bureaucracy.
There was a time, not long ago, that such a move by the administrative state would have been received with unanimous resentment on Capitol Hill. It’s the ultimate disrespect from an agency that Congress never even created in the first place. Even if a congressman or senator is in favor of greenhouse gas regulation, he or she should be offended that EPA believes it can bludgeon them into pervasive regulation of the nation’s economy at the precise moment that the science behind such actions is in serious question.
Many are calling for Congress to amend the Clean Air Act to exempt greenhouse gases. Others are encouraging our representatives to pass cap and trade and avoid Carbogeddon. These routes are either unthinkable in the current political climate or would have an unfathomable impact on our weak economy.
Luckily, Congress was granted a shorthand way of reining in wayward bureaucracies. All it must do is insert the following language in the 2009 Interior and Environment Appropriations Bill (or any appropriations bill, for that matter):
No funds may be used to develop, promulgate, or enforce any rule, proposed rule, or other regulatory action implementing or relying upon the December 7, 2009 Endangerment and Cause or Contribute findings issued by the Environmental Protection Agency with regard to regulation of greenhouse gases under the Clean Air Act.
That sentence, or something like it, would starve the EPA of funds to develop any rules on greenhouse gases. How do I know that? Because I wrote just such a sentence for my boss in 2000 about the Clean Air Act, and it became law. Let it not be said that EPA has the upper hand here. Only a weak Congress, obeisant to Obama, would countenance such bullying from a lowly administrator.
Well, OK, you’ve got me there.
Because it’s been too long since the last one.
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 wondrously colorful scene. You see before you the dozens of layers of soil, rock, and sand that have been laid down, one upon the other, over centuries. At the time each layer was established, those who were there to see it knew only of the layer being created, or of the layer beneath. 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 never saw them. 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. We like to think of philosophies like originalism and natural law as a harkening back to the way things used to be, but in many ways that’s not correct. No serious legal thinker today advocates a return of U.S. law to the way it was at the time of our founding. 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. 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 always forced America’s political leaders to adjust the structure of our government to fit the circumstances.
In an earlier post, I explored whether the Obama health insurance mandate was constitutional in a positive sense — is the federal government empowered to take this action? But through the very interesting debate that resulted from that post, it occurred to me that there is a second question that needs to be asked. Does the Constitution affirmatively prohibit such a mandate?
The Thirteenth Amendment to the Constitution is one of the simplest and most morally-defensible principles in our charter:
Section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.
Pretty easy thing to avoid, no? No American shall be forced against her will to serve another.
As an initial matter, let me be clear – I am in no way suggesting that the severity, cruelty, and horror of human slavery is comparable to the relatively-minimal cost of the health insurance mandate on most Americans. What I am comparing is a principle, and it’s the principle that is prohibited in the Thirteenth Amendment. At an elemental level, the two practices are the same.
In the form of slavery practiced in the United States in the 19th Century, a man was born or brought into this country with an obligation to serve another. His service demanded that he expend at least some, if not all, of his energies, time, and labor on the tasks he was given by his master. In exchange, he was usually given the basic needs for human survival – food, clothing, shelter – but not much more. If he failed in his duty, the law allowed him to be punished. If he fled that obligation, the government would hunt him down and force him to return to servitude. The man could do nothing to pay his debt or satisfy his obligation – he was bound for life.
Consider, now, what Obama’s health care mandate requires you to do.
You must, from the day you become a citizen of the United States, labor to earn money to pay a health insurance company. In return, you are given a promise to pay for most health care services you require. You are coerced to remain in this relationship under penalty of law.
If you become unable to work, you must still seek health insurance from the government (if you are poor, from Medicaid) or spend your savings on health insurance (for those who are not poor). If you fail to do so, you will be punished by the government. If you lose your job, you have no liberty to choose to forego health insurance to pay your mortgage, or buy food for your family, or keep your daughter in college. If you fail to keep your health insurance, you are a criminal.
This obligation begins, for most of us, on the day we are born. Most children will be covered on their parents’ policy, but their parents will immediately be forced to work harder to pay their children’s legally-enforceable debt. If the parents stop paying, not only will the parents be liable, but so will the children. An infant without health insurance will be a fugitive from justice.
When we grow up and become independent (if not sooner), we will be expected to lift the yoke of health insurance off the shoulders of our parents and begin paying for it ourselves. Nevermind that this might happen in our teens, or that we’ll be lucky to pay for pizza delivery to our freshman dorms — the government will demand that you pay for your health insurance first.
If you have a conscience-based objection to the insurance required by the government, you cannot follow your conscience and forego coverage. If you can’t stand the idea of purchasing insurance that covers abortion, you will be punished by the law. If you think a man should stand on his own two feet and refuse to accept “welfare” like Medicaid, you must spend your last dollar on health care or face indictment.
If a health insurer sees that you have stopped paying your premiums, he has a vested interest in snitching to the government, hoping that the threat of law enforcement will get you to start paying again. If the threat isn’t enough, the government can act to force you to get insured or lose your remaining liberty.
If you ever let your health insurance lapse and the government fines you, you’ll be forced to tell future employers that you have been convicted of a crime. Even if you never used any health care during the lapse, your non-payment of premium is a criminal matter.
In short, under the Obama plan, you can never escape your health insurance masters – you can only choose which master you wish to serve. If you ever lay down your shovel and try to walk away, your government overseer will find you, punish you, and put you back in line.
We are a society that is blessed in countless ways. One of those blessings is a total ignorance of human bondage. In other countries, marriages are enforced like servitudes. In Africa and Southeast Asia, classic 19th Century slavery is still practiced and, to some degree, countenanced by the government. Even in some Western democracies, citizens are forced into petty private obligations at the government’s whim, small sacrifices of liberty for the common good.
As much as we often decry the loss of freedom in the U.S., we are an astoundingly free people, particularly in the commercial arena. We are allowed to organize our lives in innumerable ways, and the government largely stays out of the way. One of those ways is health care. Most of us go the easy way, taking the insurance offered at the office, muttering curses at the co-pays but largely happy with the care. Some smaller percentage of us do other things, others take advantage of government programs, and a small but not insignificant group opt out of the insurance market altogether. Does this liberty cost the nation? Yes – all liberty does, because liberties imply the right to make mistakes. But We the People decided some 232 years ago that the costs didn’t matter – we wanted freedom. We fought the bloodiest war in American history to extend this freedom to everyone. We endured decades more of strife and struggle to break the cords of bondage forever.
Surely – surely – our first black President isn’t about to be the first to sign into law an act of Congress that abridges the Thirteenth Amendment?
*this post used to be entitled “The Health Insurance Mandate: Is It Slavery?,” but some friends pointed out that involuntary servitude is the more precise term.