Constitutionality vs. Rule of Law - The American Spectator | USA News and Politics
Constitutionality vs. Rule of Law

Jonathan Cohn messaged me to object to my post last week in which I claimed that he, along with other left-of-center commentators, wasn’t taking the questions about Obamacare’s constitutionality seriously. He points out that he wrote a long, serious piece on that very topic, and concedes that liberals didn’t take the legal challenges to the law seriously enough at the outset. 

The key point, though, is not about liberals’ arguments regarding the constitutionality of Obamacare. That is a complicated issue, and one on which reasonable people disagree in good faith. What really bothers the right wing is the liberals’ lack of concern for the rule of law at all. 

The original sin, again, was then-Speaker Nancy Pelosi’s “Are you serious? Are you serious?” reply to a reporter’s question about the constitutional basis for the health care law. Pelosi wasn’t incredulous that the reporter was criticizing her jurisprudence. She was insulted that the reporter would bring up the question at all. In other words, she considered the question of the Constitution beneath the person about to orchestrate a historic policy achievement. 

As events have unfolded and the law has run into serious legal trouble, it’s hard not to evaluate the subsequent liberal reactions without recalling Pelosi’s initial derisiveness. So when liberal politicians or commentators invoke an obscure and irrelevant 18th-century anti-piracy law as a precedent, carelessly cite non-existent provisions of the law as a defense, try to argue that the mandate both is and is not a tax, or threaten that overturning Obamacare would cast Medicare’s legal status into doubt as well (and we wouldn’t want to go there, would we?), there’s cause for suspicion that they just want these questions to disappear.

Democrats probably underestimate the resentment their disregard for the rules has fostered among Tea Party-types. President Obama and the Democrats, of course, are not the first ones to demonstrate a lack of regard for the rule of law. But Obamacare is not only constitutionally questionable but also unpopular, and the individual mandate is particularly controversial in both respects. 

In other words, the cause of the backlash against the individual mandate is not that it is unconstitutional. After all, it could theoretically be made constitutional by amending the Constitution — which should only seem natural if access to “decent, quality health care [is] a fundamental right” like those in the Bill of Rights. The perceived outrage is that the Democrats didn’t consider the rules in passing a hugely significant and unpopular bill, and then ignored or derided the people who objected. 

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