Last week, two-thirds of Ohioans voted against letting the
government force people to buy health insurance. The measure passed
by a greater margin than the collective bargaining initiative,
which grabbed most of the headlines, failed. Ohio’s state
constitution now rejects the individual mandate central to both the
president’s federal health care program and the Massachusetts law
on which it was partially based.
The vote was a rebuke to Barack Obama, who needs Ohio’s
electoral votes in order to win a second term, and Sen. Sherrod
Brown (D-OH), an Obamacare supporter who is also up for reelection
next year.
Less directly, it also sends a message to Republican
presidential frontrunners Mitt Romney and Newt Gingrich, who have
both championed mandate-driven health care policies in the past.
Romney pointedly declined to endorse the initiative during a recent
Ohio campaign swing.
Yet the very same day, the D.C. Court of Appeals upheld the
president’s Patient Protection and Affordable Care Act. The anchor
of the 2-1 majority opinion was Judge Laurence Silberman, a
Republican appointee with a long history in legal conservative
circles. In fact, we can get a good idea of how important the
decision was to liberals based on how much they played up
Silberman’s conservatism.
The Washington Post
called him “the conservative judge who upheld health reform”
despite a “lengthy history of conservative legal thought.” Sort of
like a marathon runner who broke records despite a lengthy history
of debilitating illness. The New York Times
described Silberman as a “stalwart of conservative
jurisprudence.” The Atlantic
referred to him as a “conservative icon” and “one of America’s
most feared conservative judges.” The New Republic
celebrated “How conservative judges just provided the most
authoritative legal defense for Obamacare.”
We are reminded that Silberman has served Republican presidents
dating back to Richard M. Nixon. He received the Presidential Medal
of Freedom from George W. Bush. (Silberman co-chaired a
presidential commission investigating the failure to find weapons
of mass destruction in Iraq, which was far kinder to Bush than any
independent commission was likely to have been.)
It is hard to think of a better illustration of the disconnect
between the Beltway and Middle America, the American people and
their black-robed masters, than last Tuesday’s contrasting health
care votes in Ohio and Washington, D.C.
Of course, something isn’t unconstitutional merely because it’s
unpopular. But the most striking thing about this decision handed
down by a stalwart of conservative jurisprudence is how little it
had to do with the Constitution as ratified.
Instead Silberman frankly acknowledged the difficulty of
squaring this assertion of federal power with an original
understanding of the commerce clause, observing that the Framers
“obviously intended to make a distinction between interstate and
local commerce, but Supreme Court jurisprudence over the last
century has largely eroded that distinction.” He noted that the
Obama administration “concedes the novelty of the mandate and lack
of any doctrinal limiting principles.” He even allows that
affirmation of the mandate could “turn the Commerce Clause into a
federal police power, at the expense of state sovereignty.”
In summary: the elected branches of the federal government have
been invoking the commerce clause to assert powers not delegated by
the Constitution for years. The Supreme Court has mostly let them.
Tough luck.
Here is an example of how abandoning the idea that we have a
federal government of limited, enumerated powers has left the
American people with a federal program they do not want, that the
original Constitution gave Congress no authority to enact, and that
they cannot afford. Obligations are being imposed upon future
generations which they did not freely choose, cannot pay for, and
cannot get out of.
Each new precedent knocks down the remaining limits on federal
power. Not even Wickard v.
Filburn, the Supreme Court case cited as justification for
the mandate, actually forced anyone to buy wheat. Even the two
limits on commerce clause regulation Silberman recognizes — when
the impact on interstate commerce is negligible or wholly
nonexistent — will eventually fall away in the zeal to give
Congress unfettered power to “forge national solutions to national
problems.”
There is a second lesson to be learned here. Much of what passes
for conservatism doesn’t limit the federal government, much less
conserve anything. People who are interested in conserving things,
like limited government and the political inheritance of the
Founding Fathers, shouldn’t simply settle for hoping the
Republicans they vote for appoint the right judges.
Republican presidents have given us Earl Warren, Harry Blackmun,
John Paul Stevens, Anthony Kennedy, and David Souter. If we’re not
careful, their judges will also give us a permanent individual
mandate.
