ObamaCare Confronts a Hard Reality

by Mr. Curmudgeon | Apr 3rd 2012

I Dream Things that Never Were …

-Robert F. Kennedy

A recent New York Times article contemplates the unthinkable:

"For the White House and the president's re-election team, the challenge begins immediately. They must publically defend the law's [ObamaCare's] constitutionality and push back against suggestions that the battle is already lost, even as they privately piece together a contingency plan if the law – or part of it – is overturned."

The excerpt above is a masterpiece of Orwellian "double-think," the ability to hold diametrically opposed ideas within a single thick skull. But it beautifully expresses the divide between storybook fantasy and cold reality, demagogic politics and analytic law, tyranny and freedom.

"Well," said President Obama in a 2009 address before a joint session of Congress, "the time for bickering is over. The time for games has passed. Now is the season for action. Now is when we must bring the best ideas of both parties together, and show the American people that we can still do what we were sent here to do. Now is the time to deliver on health care."

There were two major flaws with the president's calculations:

1. A majority of Americans opposed ObamaCare from its inception. Who doesn't recall the stream of YouTube videos showing boisterous town hall meetings of constituents giving their erstwhile representatives an earful, sounding like Patrick "give me liberty or give me death" Henry. Obama's congressional allies came off sounding like Prince John's sniveling henchmen in The Adventures of Robin Hood.

2. The second problem, one the media's talking heads insisted posed no problem at all, was whether nationalizing one-sixth of the economy, creating a government-run health insurance market and forcing every American into this clattering Rube Goldberg contraption, fell within the confines of the Constitution's enumerated powers; you know, that funny term used by the guys in the powdered wigs who convened in Philadelphia in 1787 and insisted their new government was legally obliged to do only those things allowed, well, by law.

Many legal analysts, CNN's Jeffrey Toobin for one, assured Obama's nervous re-election team – by which I mean virtually every editor and writer in virtually every newsroom in America – that James Madison, Gouverneur Morris, John Dickinson and Thomas Jefferson's enumerated powers were the intellectual jet fuel behind Mao Tse-Tung's Great Leap Forward. Toobin told the vacant-headed interviewer Charlie Rose that the U.S. Supreme Court would sanction the president's little experiment in totalitarianism by a 7-to-2 or an 8-to-1 vote.

The Brick Wall of Reality …

The first hint that ObamaCare was in trouble was when Speaker of the House Nancy Pelosi pleaded for her Democratic colleagues to "pass the bill so you can find out what is in it, away from the fog of controversy."

In saying this, she telegraphed two important realities: Transforming a free society into one that is not is very complicated – ObamaCare represents 2,700 pages of scintillating reading; and, second, America's transformative shift from representative government to a Czar-directed regime that renders congressional service to constituents superfluous.

When Pelosi's Democratic majority overwhelmingly voted not to read the bill, by passing it, many Americans realized there was something terribly wrong with our two-party system. With Republicans profoundly disinterested in resisting Obama and Pelosi's power grab, it fell to ordinary citizens to wage a two-front war against both political parties in the name of one overriding principle – restoring Constitutional normalcy to America.

Tea Party America unseated many a Pelosi Democrat and compliant Republican-in-Name-Only (RINO). The disastrous 2010 midterm elections, dubbed the "shellacking" by Obama, helped change the conversation in America from "What can government do for us" to "What can we do to shield ourselves from imperial government."

Somebody Call the Cops …

"When the President does it," the disgraced Richard Nixon famously said, "that means that it is not illegal."

A presidential pardon saved Nixon from testing his novel theory in open court, sparing him an embarrassing perp-walk and time behind bars. Much to Nixon's credit, his criminal inclinations tended toward the petty: Break-ins, wiretaps, and using the police powers of the FBI, CIA and IRS to harass political enemies. He never attempted to change America's more than 200-year constitutional arrangement between a free people and its elected government.

Nixon was tricky … but not that tricky.

The real trick was convincing lawmakers and the public that ObamaCare was just a benign way for Congress to nudge the country into engaging in a little regulated interstate commerce – even if Congress created that market, its main product and its readymade customers. This arrangement seemed at odds with a free society and more familiar in practice with the illicit powers exercised by New York City's mafia crime families.

Tell It to the Judge …

When Solicitor General Donald Verilli stood before the U.S. Supreme Court to defend ObamaCare, he had trouble getting the words out. He repeated himself, coughed, cleared his throat and stopped to drink a glass of water. He was undoubtedly nervous. Not for arguing the government's case before the nation's high court, he has done so 17 times before. It was that his argument took previous misguided Supreme Court rulings to their logical conclusion, and in defense of one principle: The power of Congress is infinite.

Supreme Court rulings since the heyday of the New Deal have expanded federal authority through novel interpretations of the Constitution's Interstate Commerce Clause. Under this argument, economic activity links us to one another, like the oxygen we breathe or the rays of the warming sun.

Karl Marx sought to place the "means of production" in the hands of the state, by which he meant factories. ObamaCare, through its individual mandate, covets the individual by radically redefining us as necessary cogs in the machine of government-created "commerce." ObamaCare perceives what Marx failed to see: That free men and women are the means of production.

But totalitarianism is beset with many internal contradictions. During the first day's oral arguments, the government lawyer insisted the courts had no legal authority to rule on the issue. He reasoned that the individual mandate was a tax and that Congress was simply exercising its taxing authority. Since no one has paid a fine for running afoul of the individual mandate (scheduled to begin in 2015), no injury has been inflicted and the courts cannot hear the case (the Anti-Injunction Act of 1867). The very next day, Verilli argued ObamaCare was not a tax but an Interstate Commerce and Necessary and Proper clause issue.

In one ironic moment, Verilli argued that the individual mandate required the IRS to function like a bill collection agency to guarantee that health care recipients "pay" for what they get. After all, Verilli insisted, many currently receive "health care service anyway as a result of social norms … to which we've obligated ourselves so that people get health care." Justice Antonin Scalia's answer to that was simple – "Don't obligate yourself."

Justice Anthony Kennedy, considered the high court's swing vote, framed his comment, Jeopardy-like, in the form of a question, "When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?"

You're Such a Burden ...


Ah, yes, the "burden of justification … under the Constitution." That statement by Justice Kennedy caused shivers to run up the collective spines of American Progressives. The Washington Post's E.J. Dionne was apoplectic, "Last week's Supreme Court oral arguments on health care were the most dramatic example of how radical tea partyism has displaced mainstream conservative thinking."

Dionne then expressed the darkest fear lurking in the hearts of his Progressive brethren, "It's not just that the law's individual mandate was, until very recently, a conservative idea. Even conservative legal analysts were insisting it was impossible to imagine the court declaring the health care mandate unconstitutional, given its past decisions."

For modern Progressives, American history begins with FDR's New Deal, and the subsequent Supreme Court rulings upholding the expansion of federal power under creative reinterpretations of the Constitution's clear language and meaning ("penumbras and emanations"). If you have no reasonable expectation of amending the founding document through the democratic process, the next best thing is to dub it a "living Constitution," leaving the amending to a nine person star chamber.

But Supreme Court justices read the newspapers just like the next guy – even the Washington Post. They would be hard pressed not to notice American Progressivism, which views the welfare-state police powers of Congress as infinite, is moving our nation inexorably toward fiscal ruin and a decidedly more authoritarian government.

If, as the Post's Dionne suggests, five Supreme Court justices are listening to the ruminations of the tea party, it's not the clamorous souls of the 2010 midterm elections … it's the guys in the tri-cornered hats who threw tea into Boston Harbor on a cold winter's eve in 1773. They predate today's meaningless left/right debate.

And that's the point. The Founder's believed the best way to preserve individual liberty was to create a national government of limited and enumerated powers while granting the various states unlimited power. This way, if a so-called "conservative" like Gov. Mitt Romney should enact a health care law with a totalitarian mandate in Massachusetts, free spirits could simply vote with their feet, fleeing to a nearby liberty-loving state. A national government with unlimited power forces its view on the whole nation, eliminating the safety our constitutional diversity of states was designed to provide. Obama and Pelosi's mandate was meant to be the final blow to that constitutional arrangement.

Politics are a lot like a magic act. Its success has more to do with the dazzling and distracting props of the magician – not to mention his deft sleight of hand. More importantly, the audience is predisposed to being fooled.

Law, on the other hand, relies on fact and precedent. Unlike the magician's audience, practitioners of the law are supposed to be predisposed skeptics who rely on reason and sound argument to arrive at the truth before dispensing justice.

The creeping totalitarianism of American Progressivism is about to get a swift kick in the pants by the very court that conjured the beast now threatening us.