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The Spectacle Blog
Jonathan Cohn thinks that conservatives’ doubts about the constitutionalism of Obamacare’s individual mandate are rooted in dishonesty, because if they really believe what they are saying they should also think Medicare is unconstitutional:
What I don’t understand is how these people can, on the one hand, reject enactment of the Affordable Care Act and, on the other hand, accept the existence of a program like Medicare. That is precisely what many of them argue and what Judge Roger Vinson stated in his opinion this week.
…
Of course, these mandate critics know the public won’t entertain moral objections to Medicare any more than the courts will entertain constitutional ones. It’s settled law and, for the most part, settled policy.
Of course this could be an argument for the constitutionality of Obamacare or against the constitutionality of Medicare.
Note the progression of liberal thought on this subject: it’s fair to say that when the law was being devised the mainstream liberal attitude was total unconcern for the question of its constitutionality. The best example of this mindset is probably then-Speaker Nancy Pelosi’s response of “Are you serious? Are you serious?” to a reporter’s question about the law’s constitutionality. Then, when right-wingers initiated legal challenges immediately following the law’s passage, the liberal response was derision. In particular, Virginia attorney general Ken Cuccinelli became the butt of left-wing jokes for his lawsuit against Obamacare…right up until it succeeded in a federal district court.
Now that the legal case against the individual mandate has gained momentum, Cohn is broaching, at least indirectly, the question of Medicare’s constitutionality. Without going into the Constitutional questions about Medicare and Obamacare, notice that at each stage the liberal response to the legal challenges has not been to justify the legal basis for Obamacare, but in fact to avoid addressing it altogether. So Cohn appeals to the public approval of Medicare not to reflect on Medicare’s status under the Constitution, but to try to head off further arguments. After all, who would want to have to consider whether one of our biggest social programs is in accord with our founding documents? Who wants to worry about whether the laws of the land have any bearing on what the government does? Let’s just go about our business and not get wrapped up in it.
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More Blog Posts by Joseph Lawler
http://spectator.org/blog/2011/02/03/the-seed-of-constitutionalism
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SCM| 2.3.11 @ 4:00PM
Medicare probably is unconstitutional, inasmuch as the Constitution defines the federal government's powers and leaves everything else to the states. Perhaps the nicer way of saying it is that Medicare and other similar federal programs are extra-constitutional. Add in whole Departments, like Energy and Education, as well. Either way, we'd probably be much better off without them.
Willy| 2.3.11 @ 4:18PM
The last time that I checked, Medicare was available but not mandatory for those qualified. It was also enacted by a bipartisan Congress as opposed to having it shoved down the throats of the public by an arrogant, power drunk Congress.
Chuck| 2.3.11 @ 4:20PM
Also the BIG element in place since 1913...THE FEDERAL RESERVE. The US Central Bank is 100% unconstitutional, Congress and ONLY the Congress has the constitutional right to COIN money interpret that as GOLD and SILVER COINS therefore making the 1965 coinage act unconstitutional which took out silver from dimes, quarters and half-dollars and replaced with base metal. The current Congress needs to do the following: keep the cuurent debt ceiling in place, audit the FED and then legislate the FED out of existence. On the state level Virginia has taken the first step against the FED considering accepting gold and silver coins as an alternative currency to debt ridden paper federal reserve notes similar to what JFK did in 1963. Kennedy issued debt free US Treasury notes aka silver certificates the face value of which matched the value of silver in US vaults, he also opened the silver exchange closed since the Great Depression. His effort to bypass the FED came to naught when he was assassinated. JFK was on the right track and the current Congress needs to finish the job. Do you know the value of the dollar has declined 25% in value in the last 10 years-99% since 1913. Enough said.
jgo| 2.3.11 @ 8:03PM
They're not "liberal" and this is not "liberal thought".
National Socialist Health Care Perversion/PP&ACA;/HCERA/Obamacare, Medicare, Medicaid, and the whole Socialist Insecurity Abomination are unconstitutional. Anyone who is functionally literate has known this all along.
But those who hold their wishes above reality refuse to acknowledge it or its implications.
Will| 2.3.11 @ 9:35PM
Notice the Leftist two-step:
1. Deny that legislation like Obamacare is a nefarious, precendent-setting power grab that not only is an intrusion on individual liberty but also paves the way for future restrictions of liberty. Say that any claims to the contrary are the fears of extremists falling for a specious slippery-slope fallacy.
2. Use Medicare as precedent for asserting the validity of Obamacare.
See what they do there? Deny that this particular government bloat will lead to any future bloat. Then use past bloat to justify the current dubious expansion of government.
john dubose| 2.3.11 @ 10:12PM
There is a rather clear legal difference between the funding of Medicare and Obamacare. Medicare is funded by taxes paid directly to the federal government. Obamacare uses private middle men ( insurance companies ) who get to take a cut. Kind of like private tax collectors. Remember how much these guys were hated in biblical times.
It is true that historically this was more or less a Republican idea. But
1. It was floated by the likes of Mitt Romney to try to keep the Democrats from enacting something worse.
2. It was to be done at the state level. Depending on how one reads the US Constitution, states have more power to do that than the Feds.
Red Phillips | 2.3.11 @ 11:23PM
John, Medicare is still unconstitutional on enumerated powers grounds regardless of the mechanism of funding. Do you not agree?
Red Phillips | 2.3.11 @ 11:21PM
"because if they really believe what they are saying they should also think Medicare is unconstitutional"
Of course Medicare is unconstitutional on enumerated powers grounds. The mandate is unconstitutional on the same grounds, but I think it strikes people as more onerous because it requires an expenditure rather than just bestowing a benefit.
wodiej| 2.4.11 @ 4:32AM
Actually, Medicare should be privatized and handled by states. I believe Rand Paul or someone in Congress has brought that up. Same should be done w SS. Gov't should not be providing all this. It enables people to not take care of themselves. And for crying out loud, do something about the medical costs. It's ridiculous.
Matthew Petryni| 2.7.11 @ 3:48PM
Plenty of liberals have made arguments for the constitutionality of the Affordable Care Act. Such arguments have been asserted in all of the Court cases testing its constitutionality, in the popular media, and have been accepted by two federal judges who have ruled the law Constitutional. They usually are based in one of two Constitutional powers, afforded to Congress by case law: the interstate commerce power and the taxation power.
That you didn't take the time to consider or respond these arguments is not liberals' fault. But don't pretend that liberals are simply ignoring the issue of Constitutionality, because frankly, they're not.