Thought of the Day 11.06.09

President Obama and the Democratically controlled Congress are trying to pass a health care package which will require health insurance for all Americans, provide that coverage for many of them, and intensely regulate non-government insurance plans. Both the scope and novelty of this proposal have led many people to question its Constitutionality.

See, no matter how good an idea is, Congress can only do what the Constitution permits. Everything else is illegal. And because states were scared of an expansive federal government, the burden of proof was historically against Congress. A law was presumed unconstitutional unless the power to pass it was specifically enumerated in Article 1, Section 8. This is why the President had veto power, not as a way of coercing them to pass his agenda, but as the first line of defense against Congress playing out of bounds.

Sadly, our founders may have had too much faith in the federal oath of office, or, more precisely, in the Constitutional knowledge which it presumes.
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7 comments:

Naum said...

You really sound like a "nutter" here… …no reputable legal scholar today believes health care reform legislation is unconstitutional (though surely there will be challenges by fringe, extremist groups).

November 6, 2009 at 7:39 AM
Andrew Tallman said...

Thank you for your cogent analysis.

Here, I had been thinking that I did a fair amount of research and thinking about this subject and come to a reasonable conclusion. But now that you've shown so logically that I am a fringe nutter extremist, I find myself totally persuaded to your point of view.

Recourse to ad hominem is best recognized as a form of concession speech.

I would also recommend browsing Federalist 73 for perspective on the veto power, which was meant to be the main point here.
http://usgovinfo.about.com/library/fed/blfed73.htm

For more reading (pro and con) on the Constitutional issue, see here:
http://andrewtallmanshowtopics.blogspot.com/2009/11/wacky-wednesday-obamacare-is.html

November 6, 2009 at 12:33 PM
Naum said...

Birthers, tenthers and glue sniffers, oh my!

All of your PRO (or is that CON) links point to either Andrew Napolitano (who long ago traded in his legal chops for shock talk jock glibertarian fare) or Rivkin and Casey editorial in foreign billionaire Rupert Murdoch (along with a Saudi oil sheik) propaganda organ WSJ. Napolitano is not even taken seriously by even conservative legal minds and even Rivkin and Casey are far out on a limb here.

Seriously, this debate ended 75+ years ago. To possess that sentiment, is indeed, to harken back to segregationists, robber barons, etc.…

…regressive politics.

There may be legitimate gripes with the health care reform (and calling it Obamacare is a slur too — it's not his "personal" handcrafted legislation, he's just championed health care reform in general), but calling it "unconstitutional" is indeed entering "nutter" fringe extremist land.

Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them. ~~Thomas Jefferson

November 9, 2009 at 11:50 AM
Andrew Tallman said...

I'm fairly sure that Thomas Jefferson understood the difference between ridicule and mere name-calling. The heart of effective ridicule is basis in (and reference to) reason.

Also, I'd suggest you study a bit more on the genetic fallacy. Accusing the WSJ of being worthless because it's owned by a billionaire does very little to persuade people who might disagree with you, especially those of us who know about the informal fallacies. Is everything you say wrong because you in habit the far left of the political spectrum? No. Ideas stand or fall on their merits, not on the merit of the mouths from which they proceed.

Seriously, Naum. You can say something is settled law, but that doesn't mean that it's good law. The very site you reference vehemently disagrees with BSA v Dale, a ruling many of us cheered. The right to disagree with the Supreme Court, even its old decisions, is fairly well within the tradition of American politic discourse.

But you once again fall into your habitual problem. It's one thing to assert that virtually anything the government wants to do is acceptable because the New Deal is legal. But it's an entirely different thing to say that anyone who questions Obamacare is hearkening back to segregation and robber barons. After studying the genetic fallacy, maybe you should also check "poisoning the well." Glue sniffers? Really?

Regressive politics? In the sense that we aren't "progressives?" Yes. In the sense that we believe many things have been done wrong in the last 75 years? Well, yes, we do. In the sense that we think we should return to every single condition that was true 75 years ago? Do you actually know anyone who holds that view publicly?

On the issue of the slur, you're completely wrong. Had Obama not been elected, we wouldn't be having this conversation. So I'm left either calling it Obamacare (which I use as a description, especially since you know I eschew mocking names) or calling it "Health Care Reform," which is far too favorable a label to be embraced by us who criticize it. After all, who can be against "reform?" Surely only segregationists, nutters, and ridiculous people who think the Constitution limits federal power.

But here's the critical thing. You haven't given me any good arguments that it is Constitutional, you haven't supplied any links to excellent analyses which show it is (at least I've given some for both sides), and I'd love to hear a serious answer from you as to what proposals WOULD be unconstitutional, aside from those which clearly violate things in the Bill of Rights.

Would it be legal for Congress to mandate we all buy American cars? Or cars at all? What about subscribe to the newspaper? Could it require us all to buy house insurance? How about houses? Could Congress require all adults to get married by age 25 because marriage has commercial implications? It seems like your view can't reject any of those except on prudential grounds. In your view, are there ANY limits to the scope of the Commerce Clause? And if so, how shall we distinguish between those and the legitimate (though novel) efforts to regulate commerce?

November 9, 2009 at 2:03 PM
Naum said...

There you go again… :)

My point about WSJ editorial page is that it's far detached from the mainstream, and more emblematic of its publishers (just as NY Times, Washington Post, MSNBC, Fox News (also owned by same media mogul), etc.… are too).

And my point on the legal "constitutional" question is that while you term it "wacky" that New Deal reforms are constitutional, that is a viewpoint that is in the realm of fringe extremism, particularly amongst legal scholars. Yes, that doesn't necessarily mean it's totally invalid. But I find it peculiar that someone would term "wacky" what 95-99% of contemporary credentialed, scholarly legal assessment.

On "Obamacare", it is indeed a name calling slur, to attribute all that is in the proposed legislation to him. You have it backwards — Obama was elected, in large part, because he correctly called out the injustice, incompleteness and inadequacy of the present system. The need for reform didn't come out of a vacuum, Obama stepped in front of the parade. Any Democratic president (as did Clinton attempt when he was elected) elected would be championing health care reform.

Regressive politics? Yes, because its force and momentum is based in the same selfish memes — "I don't want to be supporting THEM people", "what part of ILLEGAL don't you understand", etc.… …everything IMV that goes against Jesus charging us to look after the "the least of these"…

Regards to your take on mandates, while we're not charged all with buying cars, it's mandatory to purchase insurance (and be licensed to drive). Do you think that is unconstitutional too?

Frankly, though I definitely share a sentiment for health care reform (agreeing with the majority of health care providers who know firsthand the need for reform!) I'm not a big supporter of the proposed legislation as is, which I believe is more about corporate welfare than implementing a more just system. But it beats the alternative of doing nothing, maybe — depending on whether or not eschewing this type of reform would mean we'd get real universal single-payer healthcare reform later or if that's just a utopian delusion. But when I hear this type of argument, it pushes me directly into support for the current legislation.

November 10, 2009 at 9:17 AM
Andrew Tallman said...

I know I've explained this to you several times before, but I will repeat it for clarity. "Wacky" describes the exercise and the fact that I am arguing for the opposite view from my own on Wednesdays. It does not describe the viewpoint I am representing, even if I believe it to be wrong or ludicrous on occasion. I'm not sure why you keep making this mistake, except that I begin to suspect you're doing so on purpose.

Auto insurance is an absolutely fascinating analogy, but the one thing people who use it always seem to overlook is the fact that the Federal Govermnet does not require this of us. States do! So, to use it as a justification for the individual mandate being Constitutional is essentially ridiculous, since it's not even a federal statute in the first place. "It's Constitutional for us to do a new thing because it's just like an old thing that we also don't do?"

I listed several very specific mandates. Which of them CAN'T Congress do Constitutionally, based on your (admittedly common) view of the Constitution? Don't evade the question by only talking about car insurance.

As for the Biblical requirement, would it now be fair for me to say that you are advocating a theocracy? That's quite a reversal of our normal roles! If you are, I'm willing to talk about it, but that would put a pretty large number of other possible laws on the table. Are you willing to consider embracing the full scope of Biblical prescriptions by this same reasoning? I mean, if we're going to be Biblical theocrats, let's at least try to do so consistently and thoroughly.

BTW, you know better than to lump me in with people who hate illegal immigrants. Shame on you for generalizing me together with the worst conservatives that way. We've been friends for far too long for you to so easily make that mistake. If you read my "Open Letter to President Obama" article, you may recall I said that if I were running a hospital, I would probably run it into the ground giving away health care to the poor. That wasn't braggadocio, just accurate self-description as to why I shouldn't be such an administrator.

November 10, 2009 at 11:03 AM
Naum said...

First off, thanks for the engagement here! You are a good sport in tackling my counterpoints… :)

On "wacky"-ness, maybe it's echoes of Dale Carnegie reverberating in the chambers in my mind, but terming something "wacky" or "wrong" (unless it's truly a "wacky" notion) that's hotly debated is a surefire prescription for anger, lock & load, not fruitful dialogue…

On your metaphor of mandates, your analogies are not apropos — common sense alone divides the life giving benefit of health care vs. arbitrary state dictates.

No, not advocating for theocracy, just advancing the cause of justice. I cast a biblical reference to a sincere, fellow follower of Jesus way. (though I would eagerly quote Jesus to a nonbeliever too!) to bolster my argument, sharing in a common sentiment.

Finally, yes, I know you're not representative of misanthropic, xenophobic Buchanan style conservatism. If you were, I could not be a fan of your radio program… But the station and the conservative fundamentalist^H^H^H^H^H^H^H^H^H evangelical tradition indeed is steeped in such bigotry — Billy Graham (who to his credit since repudiated such thinking), Pat Robertson, Jerry Falwell, etc.… all were opponents of civil rights. And one only needs to read the conservative commenters at azcentral.com to quickly see the tide of xenophobia. Maybe I'm a bit jaded as I used to co-own and manage a conservative news web site (phxnews.com, now defunct…), and articles and comments overflowed from "illegal hating" conservatives, most of which proudly hailed themselves as Christians. I don't know how much history you've studied, but a big part of opposition to social programs has always been based on racism, anti-immigration and xenophobia. To which Republican campaign strategists admit using to win elections (i.e., Kevin Phillips "Southern Strategy", "state's rights", etc.…). To not acknowledge this is to be ignorant of history…

November 10, 2009 at 11:41 AM

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