Sunday, October 3, 2010

Yes, We Are Serious!

At a press conference, Nancy Pelosi (D-CA)was asked where in the constitution is the federal government granted the authority to mandate that individuals purchase health insurance, to which she responded "Are You Serious?!?"

At a town hall meeting, when Congressman Pete Stark (D-CA) was presented a similar question, to which he responded "the federal government can do most anything in this country."

Clearly, their responses demonstrates that they and most politicians choose to ignore the fact that they are not free to do anything they want, the congress only has powers carefully enumerated in the Constitution. Rather, they implicitly believe that the federal government is entitled to do virtually anything that the majority desires.

And on a deeper level their statements and actions demonstrate that they (and the citizens who prescribe to their political vision) do not hold the constitution in high regards and certainly do not view it as a document created to limit their power. In a sense, we cannot blame them, because the founding fathers understood that few politicians would willingly subscribe to limitations on their power. Jefferson believed that only a vigilant, educated citizenry could hold politicians in check and maintain a republic (not a democracy). But with the growing number of people who have come to view the state as their provider, fewer citizens are exercising vigilance over their politicians. Dependency always breeds complacency.

There are those who will respond: "but, times have changed, our world is so different than the one that the Founding Fathers resided in. The size and scope of the state must grow to address the needs of today's Americans..."

I am open top the idea that in theory some of Pelosi's policies may be necessary. However, rather than use cheap sophistry and a willingful misinterpretation of the Constitution to justify these measures, ammend it to the Constitution. Even if the end result were the same, it is essential to force politicians to submit to the processes laid down in the constitution. Why? Because, this would force politicians and the general public to carefully consider and debate the wisdom of the fundamental changes they are proposing, rather than push them through by hiding them in a 3,000 page bill that virtually no one has read. I would consider it a disaster if the left were able to ammend the constitution to grant the federal government the right to mandate the purchase of health insurance. But, at least this would still mean that the republic was still run by the rule of law and not through obfuscation and that the power of politicians was still held in check, as the Founding Fathers intended.

The uproar caused by Pelosi's statement led her to issue a constitutionally based justification of her desired programs. Enclosed is an article that explores and successfully challenges her arguments.

Pelosi’s Misleading Statement on the Constitutionality of Government Health Care

by Rob Natelson

Speaker Nancy Pelosi has issued a press release in which she purports to rebut those of us who have expressed doubts about the constitutionality of some health care reform plans.

Pelosi (or her ghostwriter) claims:

“The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states… or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited. (bolded in original).

For several reasons, this is a highly misleading statement.

First, it fails to mention a concern expressed by many constitutional scholars, including those on the Left: Substantive due process.

“Substantive due process” is the doctrine by which the Supreme Court strikes down laws it deems unacceptably interfere with personal privacy or autonomy. Health care laws that, for example, limit one’s ability to fund and control one’s own health care could well run afoul of substantive due process rules.

Second, the statement fails to mention that, while the Supreme Court has upheld many delegations of power from Congress to executive branch agencies, the Court has affirmed repeatedly that there are limits. Some health care proposals involve wider delegations of authority than any since the New Deal’s National Reconstruction Adminisration (NRA) — which was invalidated by a unanimous Court.

Third, the Pelosi release disregards the fact that on several occasions the modern Supreme Court has struck down overreaching federal legislation, supposedly adopted under the Commerce Power. Also, on several occasions, the Court has interpreted congressional acts narrowly to avoid constitutional conflicts.

Fourth: Pelosi (or her speechwriter) clearly misstate the current Supreme Court’s test for laws under the Constitution’s Commerce Power. The statement that Congress can regulate “activities that have an effect on interstate commerce” should be that Congress can regulate “economic activities that have a substantial effect on interstate commerce.” Non-economic activities, such as some health care decisions, would have to meet a much stricter test. This may seem to be a minor mistake, but for legal purposes it is an important one, and one that, for the Speaker of the House of Representatives, is not easily excusable.

Finally, Pelosi (or her ghostwriter) commits the mistake of failing to look at wider judicial trends. One of these trends is the long-term movement by the Supreme Court toward interpreting the Constitution according to its real meaning – the original understanding of the Founders and Ratifiers.

And virtually no knowledgeable person thinks government health care is constitutional under that standard.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar. (See His opinions are his own, and should not be attributed to any other person or institution.

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