At a congressional hearing, HHS Secretary Sebelius has to admit she did not consider constitutionally protected religious liberty when she issued her now infamous HHS mandate on insurance coverage of sterilization and contraception. Congressman Gowdy pins her down. Her worst excuse was that she is not a lawyer.
Jeffrey Rosen has a nice bit of sophistry in The New Republic. He suggests, perhaps correctly, that Justices Kennedy and Roberts, were asking the government to point to a limiting principle--something which would allow Obamacare, but would nonetheless not allow the federal government legal authority to do whatever it wanted. Unfortunately, he says:
[Soliciter Genera] Verrilli's error was substantive: He failed squarely to answer Roberts and Kennedy's repeated questions about what limits he envisioned to Congress's power to regulate interstate commerce. Verrilli's evasions weren't only unhelpful--they were also unnecessary.
Rosen suggests that there is an obvious limiting principle, one that can be discovered in the founding. "In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women," he notes, "the Court has drawn a distinction between activity that is truly local and activity that is truly national."
More generally, he quotes a new book by Neil S. Siegel suggesting that the federal government was designed to address any problem that was not local in nature:
"The Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce." Siegel argues that "to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action."
Balderdash! If that was the meaning of the commerce clause, it would not say: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Rosen's argumen views the Constitution from 30,000 feet. Its particular details fade into nothingness and it becomes a plenary grant to address any issue that Rosen thinks is a national one.
Consider some constitutional arguments of the founding era. In that era, we should note, it was an open question whether the federal government had the authority to build roads, canals, and other such projects. President Madison thought it might be, but in the end, he decided that such projects required an amendment, which he supported. Whigs disagreed with that. But if internal improvements were constitutionally controversial, it is hard to claim that there would have been any discussion of whether the federal goverment may regulate my visit to my doctor.
In his Opinion on the Constitutionality of the Bank, Hamilton said that Congress may create a corporation to fulfil the powers listed in Article 1, section 8. Among those he listed was the commerce clause. After all, creating and managing a national circulating medium is a national act, by definition. The key question between Hamilton and Jefferson turned on whether Hamilton was correct to infer a power to create a corporation in the service of the enumerated powers. It was self-evident that the object was national in scope.
But Hamilton noted that there were very real limits:
The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city
The federal government, even Hamilton, the man with the most expansive understanding of federal power at the time, argued, did not have a general police power. And what is the police power, classically speaking, the power to regulate health, safety, and morals and other such things. But Rosen wants to say that, under modern conditions, my visit to my doctor is a national concern. Ha! To be sure, my doctor may buy products that are shipped interstate. And if the federal government allowed it, it might be possible to buy heath insurance across state lines (that would be nice). In those cases there would be interstate commerce. By my visit to my doctor is hardly interstate commerce--unless we allow, as Rosen implies, that there is no such thing as intra-state commerce.
And that brings us to another celebrated case--Gibbons v. Ogden. That case involved the grant, by the State of New York, of a monopoly of shipping on the Hudson river. The Court ruled, not unreasonably, that the Hudson is not an intra-state waterway. ItJus has borders on New York and New Jersey, and it ends at the Atlantic Ocean. Hence such a monopoly grant was illegal.
This case matters because people on the Left often cite Justice Marshall's opinion to justfy an expansive reading of federal power. Justice Sotomayor quoted it from the bench this week. But we need to keep in mind that the case involved shipping on a waterway that borders on more than one state, and that ends at the ocean. We should also read more closely what Marshall actually said:
Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.
A clause that grants the federal government power regarding commerce among the states necessarily implies that there is such a thing as commerce that is local--the very thing that Rosen says does not exist. To be sure, he points to "previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women." But close observers will note that those are not commercial activities at all. If my visit to my doctor is interstate commerce, then there is no commerce that is not interstate.
If that is what the people want, there is a simple remedy, one consistent with the constitution. Amendment. But somehow the amendment clause falls by the wayside in pursuit of the public good.
Rosen's argument is that under current circumstances the health care market is national. H quotes a Representative from Massachusetts:
A national mandate would free Massachusettes[sic] from being "forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance."
But others might reply that Rosen is attacking the notion that the states in our federal system are laboratories of democracy. They will have diverse laws, and many different approaches to health care policy. He suggests that a state that passes a policy may not suffer from competition with other states. In other words, he presumes what he is concluding--that health care is naturally a national market.
And that brings us to a point that Walter Russell Mead makes eloquently. America's health care system is simply too large and complex to be regulated by a bureaucracy in Washington that creates a uniform set of rules for a country as large and diverse as the United States. Even by his own living constitution model, therefore, Rosen's argument fails.
First, they came for the Puerto Ricans. The HHS mandate requiring sterilization and birth control coverage in health insurance was anticipated in the New Deal policy toward Puerto Rico. It is now plain how New Deal and successive leftist social engineering embraces all aspects of political, commercial, and family life.
The recent Republican presidential primary in Puerto Rico drew attention to this constitutional oddity--a commonwealth/colony of American citizens. But the contenders overlooked the most significant element of recent Puerto Rican history for American politics today.
Franklin Roosevelt appointed one of the architects of the New Deal, Rexford G. Tugwell as its Governor. Serving from 1941-46, Tugwell followed Progressive ideology and transformed the University of Puerto Rico into a think-tank for liberal reforms for the island. He established a decades-long practice of using Puerto Rico as a laboratory for liberal policies, including birth control through sterilization and the pill.
According to one historian (JSTOR link), heavily Catholic "Puerto Rico became the chief testing ground for the birth control pill." For a while more women were sterilized there than in any other country in the world. These population control measures, tied with economic reforms, were intended to make Puerto Rico a "showcase for democracy" in the Cold War, a model of enlightened policy toward developing nations.
Bored by their lack of progress, scholars of Puerto Rico such as Oscar Lewis (author of the classic study La Vida) turned instead to that more exciting example of Cuba.
We don't need West Side Story to know that Puerto Ricans "like to be in America." But what happens when America becomes another Puerto Rico?
Three days of oral argument over the constitutionality of Obamacare begin Monday. C-SPAN will replay the oral argument later in the afternoons. It should be kept in mind that the reason we are even talking about the possibility of the Court overturning the law is one justice: Clarence Thomas (no relation to me, incidentally). The New Yorker gave this explanation of Thomas's key role in changing the Court last year.
Toobin writes several silly sentences but note the core of his argument, a warning to the left of his dangerous powers:
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
Conservatives should keep in mind that Thomas was nominated by a president not particularly beloved among conservatives--yet a man who stood by him when he came under vicious attack.
George Weigel contends "the Struggle over the HHS mandate isn't over" in today's NRO.
Despite the White House's rather successful efforts to reframe the media and congressional debate over the HHS "contraceptive mandate" as a right-wing jihad against "women's health" -- a cynical ploy aided and abetted by Rush Limbaugh's one-man circular firing squad -- the real battle against the mandate and in defense of religious freedom has continued.
Weigel cites heavily from Cardinal Dolan's letter (PDF here and USCCB news release here) to American bishops. The letter resists Obama's efforts to demagogue the issue, explores legislative and judicial remedies to the mandate and, "at last, take[s] aim at those within the Catholic family urging an acceptance of the administration's bogus 'accommodation.'" Required reading for those following this incredibly important issue.
When Obama decided to attack Catholics (and religion, in general) by forcing a contraception, sterilization and abortion insurance mandate on private institution, a question arose: Did he not foresee the backlash, or was the goal of subjecting conservative religion to liberal feminism so great that it was worth the fight? I tend to assume the latter - Obama has proved a classless and spiteful president who has consistently demeaned the office by lashing out at private individuals and institutions who dare disagree with his ideology (e.g., the Koch brothers).
The issue is multi-dimensional and profound in relation to both political theory and practical consequence. On the former, see the Conference of Catholic Bishops' website, which declares absolute opposition to the president's violation of "conscience rights and religious liberty." According to Cardinal Timothy Dolan, president of the USCCB, "Never before has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience. This shouldn't happen in a land where free exercise of religion ranks first in the Bill of Rights."
As to the practical consequences, Ed Morrisey at Hot Air asks, "What if Catholic bishops aren't bluffing?"
Earlier this week, Francis Cardinal George of the archdiocese of Chicago sent a message to parishioners in Barack Obama's home town that imposition of the HHS mandate to fund and facilitate contraception, abortifacients, and sterilization would force the Catholic Church to close its hospitals, clinics, schools, and all other organizations that would otherwise have to comply. "Two Lents from now," Cardinal George warned, "unless something changes, the page [listing Catholic organizations] will be blank." At the time, some commenters wrote that this has been Obama's plan all along -- to force religious charities out of business to make people more dependent on government. Others, including myself, figure that Obama just thinks the bishops are bluffing, and wants to engage in a high-stakes bout of brinksmanship to force them to kneel to secular authority over doctrine.
But how high are those stakes? In my column for The Fiscal Times today, I did a little research just on Catholic hospitals and their significance in American health care. As it turns out, this bet involved nearly $100 billion in annual costs and about one-seventh of all hospital beds in the US -- and that's not all:
The Catholic Church has perhaps the most extensive private health-care delivery system in the nation. It operates 12.6 percent of hospitals in the U.S., according to the Catholic Health Association of the U.S., accounting for 15.6 percent of all admissions and 14.5 percent of all hospital expenses, a total for Catholic hospitals in 2010 of $98.6 billion. Whom do these hospitals serve? Catholic hospitals handle more than their share of Medicare (16.6 percent) and Medicaid (13.65) discharges, meaning that more than one in six seniors and disabled patients get attention from these hospitals, and more than one in every eight low-income patients as well. Almost a third (32 percent) of these hospitals are located in rural areas, where patients usually have few other options for care.
This is a case of clear principles: a vote for Barack Obama in November is a vote against religious liberty and accessible health care in America. All men of good will and sound judgement should ensure that he does not have the opportunity to erode America's sacred liberties and public services any further.