Saturday, September 5, 2009

More Hot Air from "Hot Air": Implies Healthcare Reform Unconstitutional

No serious Constitutional Law scholar has argued that healthcare reform (in any of the currently proposed formats) is unconstitutional. Some conservative commentators, however, have tried unsuccessfully to float the argument.

Yes, Virginia, Healthcare Reform Is Constitutional
On August 22, David Rivkin Jr. and Lee A. Casey, two rightwing attorneys, argued in the Washington Post, that healthcare reform violated the Constitution. Their argument, however, only captured the hearts of conservatives desperate to find a good good reason to oppose healing the sick.

Today, the conservative blog Hot Air tried to revive the argument by posting footage of Senator Mark Warner explaining why healthcare reform is constitutional. Although the video link no longer works, the summary by Hot Air states that Warner cites to the Commerce Power as authority for healthcare reform. This is exactly correct, but I would add the Taxation and Spending Powers as well. I have thoroughly analyzed this issue in a prior blog post (and in the comments section to that post). Even conservative Constitutional Law professors have made similar arguments (see the post I linked).

Absurdity of the Question
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

Finally, I find it ironic that the GOP's so-called Bill of Rights for Seniors pretends to offer protection for Medicare, while conservatives have repeatedly asserted that healthcare reform violates the Constitution. If Congress lacks the power to pass healthcare reform, then it probably lacks the power to create Medicare, which conservatives claim to support. The inconsistencies are absolutely dizzying.


Anonymous said...

Darren, if you have not seen it yet, you must take a look at this "lecture" on the "U.S.S. Constitution." Can't make this stuff up.

Darren Lenard Hutchinson said...

Elizabeth: You need to be arrested for suggesting that link. It was absolute violence and depravity.

I have not heard rightwingers describe one specific right that the Obama administration has taken from them. Nevertheless, I keep hearing them say that Obama is stripping people of their rights.

I certainly hope that healthcare reform passes -- and that it includes coverage of mental health issues. There are a lot of people in the video who need a mental health cocktail. Paxil? Xanax? Lithium? Or are those too weak?

Aeneas said...

Calling it unconstitutional in its total is going way to far and over reaching; and I say this as someone who would not even dare think that I know anything about constitutional debate and law.

As always I trust your judgement in this. Paranoia and cynicism of Congress and their habit of running incompetently amock makes want to really burrow deep into the bill (if there is one... still not sure... still have no idea WTF is there (sorry for the prophanity)) and make SURE that it's all like untouched snow so that we don't have ten years of challenges in the Supreme Court.

I have to tell you I am so P****ed (here I go again) about what's happening and frustrated: the out-of-space and useful idiots on my left and the troglodites and clueless on my right.

Anonymous said...


Paxil? Xanax? Lithium?

Way too weak and a waste of good meds, Darren.

Brain transplants, I think, but the technology is not yet available. And even if it were, I bet the insurance companies would not cover it. It'd fall under extremely elective/cosmetic procedures, I think.

Besides, who'd be willing to donate a perfectly good brain to these folks?

Anonymous said...

You need to be arrested for suggesting that link.

Wait, Darren... You want to take my freedom away?! I have you know that it's guaranteed in the U.S.S. Constitution. And I've read it three times -- yes, three times -- and there is not ooonnnee word there about not blogging about idiocy. ;)

When watching that video, my teenage son commented, in his usual deadpan fashion, "Freedom of speech is overrated."

Darren Lenard Hutchinson said...

Aeneas: Join us in the cross-fire! Yes, I do feel that both sides are being awful. Democrats are being weak and unclear. Republicans are being deceitful and loud. I think the latter works for the public, unfortunately.

If I worked for Congress, I would suggest that lawmakers simply raise taxes to fund the public plan and other elements of reform. Then, people could simply keep their own insurance and receive a tax credit. If they are uninsured, they can simply get coverage through the public plan.

Mandating care, unless your are already covered -- and imposing a tax on people who refuse to get coverage -- invites arguments that the provision is unconstitutional. Both approaches, however, do the exact same thing: they provide universal coverage, and people who are not covered get taxed to pay for coverage, while people who already have coverage are not taxed. This is clearly constitutional. Congress can TAX people to fund a health plan; Congress can SPEND money to purchase medical care for individuals.

As for the other parts of the bill -- like mandating coverage of pre-existing conditions, the commerce clause clearly permits this. Insurance companies operate in interstate commerce. This is a nonstarter among con law professors.

Congress could also use the commerce clause to mandate coverage -- since people without insurance drive up healthcare costs AND Congress does not want people to game the system and wait until they are ill before buying insurance (after which insurance companies would have to insure them).

Darren Lenard Hutchinson said...

Elizabeth: I have always said that about speech! Your son has a bright future ahead of him. And deadpan is really cool -- at least I keep telling myself.

Back to the Constitution: The Constitution never mentions a right to link to scary video footage on another person's blog. And since it ain't in it, you cannot have that right.

If interpreting the Constitution were that easy, I would be out of a job!

Aeneas said...

So simple, Professor, isn't it, if a clear head prevails? I like the Swiss system (and nobody can accuse the Swiss of being profilgate and socialists) which is pretty much along the lines you are suggesting; or is the Dutch system... anyway, I also like the idea of mandating health insurance. I know way too many people who could afford it, but would rather buy a BMW. I am not exagerating here. I have no problem paying for those who truly cannot afford health care. But I have a problem when it's turning my own well ordered world upside down and reduces it when I get to that point in life when I need it most and I am most vulnerable. I plan to be a batty old woman. Mwahahahaha.

Darren Lenard Hutchinson said...

Aeneas: Yes - we end up paying for them anyway, but they are much more expensive without insurance.

liberal dissent said...

What scares the Republicans is the fact that once entitlement programs kick in, people actually tend to like them. The right doesn't like medicare, they hate it; they just know that any attempt on their part to end or curtail it would destroy them politically. Same for social security.

As for Rivkin, you just have to look at his repugnant defense of Bush policies regarding detainees before the Senate Judiciary Committee regarding Sotomayor's nomination to the Supreme Court. His defense of the Constitution now is unconvincing.

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