Saturday, October 24, 2009

Very Hot Air From "Hot Air" -- Regarding Healthcare Reform

Ed Morrissey of Hot Air has pumped out an essay defending the rightwing's largely unsuccessful effort to convince any reputable constitutional law scholar (on the right or left) that proposed healthcare reform would violate the Constitution. Morrissey's essay takes issue with my recent post that applauds Nancy Pelosi for dismissing a CNSNews reporter's question on the subject. Morrissey makes several arguments. I find none of them persuasive.

Conservatives Have Demanded "Absurdly Specific" Language Justifying Healthcare Reform
Morrissey says that "our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution." This is disingenuous. On September 22, Hot Air posted a viral video (via CNSNews) that shows a high school "government" teacher pleading with Mark Warner for specific language in the Constitution authorizing the government to "run healthcare." Certainly, a citation to Article I, or even more specifically to the Commerce Clause or to the taxation and spending powers, would not have alleviated her anxiety. Nor would it have satisfied Hot Air and CNSNews.

Furthermore, the CNSNews article that served as the basis for the Hot Air piece ominously reported that Warner said "there is 'no place in the Constitution' that mentions health care. . . ." If conservatives are, as Morrissey claims, uninterested in absurdly specific text, then Warner's statement is not newsworthy. Clearly, the Constitution does not mention health care (or education, telephones, etc.). This silence, however, does not deprive Congress of any authority over the industry.

In addition, Morrissey himself has argued that unless the Constitution "covers" a power, then Congress must "butt out." He made this assertion in response to Representative Shea-Porter's rejection of a strict reading of the Constitution that would limit Congress to the exact wording of the text. If Morrissey is not demanding exact language regarding healthcare, then he should not have found Shea-Porter's argument worthy of discussion. Although Morrissey has been more flexible at times, he has (intentionally or unintentionally) pushed a method of constitutional interpretation that he now labels "absurd."

The Framers Did Not Know About Airplanes
Morrissey also takes issue with my argument that demanding specific text on a subject would nullify the government's authority to create the Air Force. Morrissey, of course, does not point to language in the Constitution that refers to the "Air Force" or even to airplanes. Instead, he cites to more generalized language empowering Congress to provide for the "common defence." This, however, is the exact same type of constitutional interpretation that should guide debates over the constitutionality of healthcare reform. Interstate commerce, taxation, spending, and "general welfare" come to mind as places to anchor healthcare reform. Conservatives, however, have demanded precise language from liberals, while embracing generalized provisions to justify policies they favor.

Furthermore, Morrissey completely ignores more difficult questions that the strict approach implicates. For example, he specifically evades the question of Medicare's constitutionality, and he is absolutely silent regarding federal bans on partial-birth abortion, crack cocaine, acts of terrorism and other issues my essay raises. I do not believe these laws necessarily fall outside of the scope of federal authority, but I have not approached the Constitution from the constrained perspective that conservatives have advanced.

The Tenth Amendment Does Not Make Healthcare Reform Unconstitutional
Finally, Morrissey's interpretation of the Tenth Amendment -- which other conservatives seem to share -- is also flawed. In a prior essay, Morrissey argues that:

The Constitution sets their power and circumscribes it rather clearly in Article I, Section 8 and Section 9 of the Constitution. The Tenth Amendment reserves all other powers to the states or to the people, underscoring the explicit limitation on Congressional power. . . .Therefore, when the Constitution does not “cover” a subject, it explicitly and expressly intends for Congress and the federal government to butt out.
The Tenth Amendment is a truism: every power that is not delegated to the federal government is retained by the states. The provision, however, does not tell us what is in fact delegated. Nor does it state that the text of Article I expressly "covers" the entirety of permissible federal authority.

Morrissey is stuck in the era of the repudiated and supplanted Articles of Confederation. Anyone who has read McCulloch v. Maryland should know that the Court rejected the notion that unless the power was "expressly" mentioned in Article I, then Congress lacked authority; this was the law under the Articles of Confederation. Under the Constitution, Congress (as Morrissey seems to concede) has implied powers. Accordingly, the Tenth Amendment does not provide any useful information about this subject.


Wesley said...

Um, there is no "general welfare" clause in the Constitution. There's the preamble, where the words "general welfare" are mentioned, but not to grant any sort of powers to any branch of the federal government. No legislative act can be anchored in the "general welfare clause".

Darren Lenard Hutchinson said...

Wesley: Try again. Article I, Section 8, cl. 1 of the Constitution states that: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States...."

Hint: This is AFTER the preamble!

Wesley said...

Darren: touche, I guess. I spoke too soon. But Art. I sec 8 isn't considered a "general welfare" clause the way that the interstate commerce clause is considered the ICC. I.8. authorizes tax collection, not whatever the government wants to spend its revenue on relating to the general welfare. It certainly does not provide the federal government with authority to provide for the general welfare of the U.S. Otherwise, wouldn't laws prohibiting guns within 1000 ft of schools be constitutional?

Darren Lenard Hutchinson said...

Wesley: I never said that the "general welfare" language authorizes Congress to do whatever it wants. Instead, I mentioned several clauses together. The Court is quite adept at reading constitutional provisions together.

Darren Lenard Hutchinson said...

PS: Wesley, Congress passed an amended version of the Gun-Free School Zone Act. The new version simply adds findings of fact about the impact of gun violence and language requiring that the possession of the gun be "in commerce" (e.g., has moved across state lines in some way). Every lower court has upheld the new version. Touche again...

Wesley said...

Can you show me a case where the Court has interpreted the General Welfare clause (in connection with any other clause, I suppose) to authorize some legislative action other than spending?

But I'm being too narrow-minded, anyway. I just wanted to point out that you're saying some things that are as "silly" as what conservatives are saying. Ultimately, there's little chance the Court would strike down an individual mandate. But try not to take the argument so lightly.

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