Courtesy of PJ Media, here’s a revelation that’s somehow nowhere near as shocking as it ought to be. Yesterday on Capitol Hill, Secretary of Health and Human Services Kathleen Sebelius admitted that she didn’t bother to check the Constitution or judicial precedent before going ahead with the Obama Administration’s contraception mandate.Asked by Rep. Trey Gowdy (R-SC) what tests of legal interpretation she used to determine that the mandate struck the right balance with religious liberty, Sebelius answered:
Congressman, I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests […] I am not going to wade into constitutional law, I’m talking about the fact that we are implementing a law that was passed by the Congress, signed by the President, which directed our department to develop a package of preventive health services for women. We have done just that with the advice of the Institute of Medicine, and promulgated that rule.Note well that the combination of congressional votes, presidential signatures, and the opinion of the Institute of Medicine amount to somewhere between nada and zilch when it comes to constitutional law.
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy. “The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.” Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
Hot off the heels of trashing Lila Rose, Newsweek’s Michelle Goldberg jumps into the ObamaCare-contraception fray with a Daily Beast column arguing that forcing Catholic institutions to offer birth control is no big deal. Unfortunately for the Obama Administration, however, her apologia is a train wreck of distortions and non sequiturs:
But many Catholic institutions are already operating in states that require contraceptive coverage, such as New York and California. Such laws are on the books in 28 states, and only eight of them exempt Catholic hospitals and universities. Nowhere has the Catholic Church shut down in response.Really? According to the non-partisan National Conference of State Legislatures, the actual number of states with religious exemptions is twenty, making the truth the exact opposite of what Goldberg describes. Maybe that has something to do with why Catholics would consider the White House’s decision a dramatic change in the status quo?
Of all the arguments against nominating Mitt Romney for president, perhaps the strongest is that his enactment of RomneyCare and his refusal to disavow it could neutralize the Republicans’ ability to run against Barack Obama’s own intensely unpopular health care plan. If Romney is the GOP standard-bearer, expect Democrats to play up the similarities and common ancestry of the two plans, challenging Romney to explain why one is a bipartisan success story and the other is an intolerable threat to our way of life. It’s certainly a concern Republican primary voters must take seriously.But the idea that Newt Gingrich would be preferable on that score is about as unserious as it gets. The former speaker may be talking tough now on how “you can’t make the difference” between RomneyCare and ObamaCare and boasting that “I can ask [Congress] to repeal ObamaCare because I haven’t passed something which resembles it,” but the truth is that Gingrich is every bit as compromised on health care as Romney is — perhaps even more so.You wouldn’t know it from his bluster on the stump, but Gingrich endorsed RomneyCare in 2006. Despite some criticism of the bill’s imperfections, he “agree[d] entirely with Governor Romney and Massachusetts legislators that our goal should be 100 percent insurance coverage for all Americans” and, to that end, called RomneyCare “the most exciting development of the past few weeks,” with “tremendous potential to effect major change in the American health system.”
UPDATE: The Weekly Standard’s Jeffrey Anderson says Santorum has misrepresented Gingrich on healthcare, because the mandate isn’t his current position. But I think Santorum’s point is that, if Gingrich has repeatedly expressed support for the idea at the federal level and even endorsed RomneyCare in 2006, then you have to wonder just how sincere his current position is. Or are last-minute flip-flops only wrong when Mitt Romney does them?
Thanks largely to the Tea Party movement, the United States is thinking harder about individual liberty and states’ rights than she has in years. But despite identifying the problem, conservatives aren’t any closer to enacting a viable long-term solution for taming our federal leviathan.
Several efforts show promise. Many states have challenged the constitutionality of ObamaCare’s individual mandate to purchase health insurance, guaranteeing an eventual ruling from the Supreme Court. Though worth doing, that’s far too risky a basket to put all our eggs in, since it relies on a majority of the justices to rule based on the text of the Constitution rather than their personal ideologies.
In his popular book Men in Black, constitutional scholar and talk radio host Dr. Mark Levin suggests that Congress should restrain such activist judges via its constitutional authority to place limits on the courts’ jurisdiction and to impeach especially odious judges, and advocates constitutional amendments to give judges term limits and give Congress a supermajority veto over Supreme Court decisions. All these proposals are worth exploring in further detail, but even if enacted, there would still be legislative statism to deal with.
In Minnesota’s 2010 gubernatorial race, unsuccessful Republican nominee Tom Emmer backed a state constitutional amendment forbidding federal laws from taking effect without approval by a two-thirds vote in the state legislature. This proposal’s practical failings are obvious—preemptively nullifying all federal laws until the high bar of supermajority support is met would drastically complicate the law’s execution, and there’s no reason to expect state lawmakers’ decisions will be significantly more pro-Constitution that Congress, instead of simply turning on whether a particular majority happens to agree with whoever controls Capitol Hill at any given time.
In his recent book Power Divided is Power Checked, talk radio host Jason Lewis floats a more radical solution—a 28th Amendment, which would expressly affirm each state’s right to secession: “any state whose inhabitants desire through legal means and in accordance with state law to leave this union of the several states shall not be forcibly refrained from doing so.”
Secession is one of the Right’s more heated inter-movement debates, often distinguishing Libertarian from Republican, Northerner from Southerner. This conservative believes secession-at-will is a dangerous doctrine which undermines the rule of law and forgets the nation’s founding principles. Washington, Hamilton, Jefferson, and Jay all considered the national Union an indispensible safeguard of liberty, and “Father of the Constitution” James Madison explicitly denied secession’s legitimacy, explaining that, as a mutually-binding legal compact, the Constitution cannot be broken by any single party.
Moreover, conservatives need to be honest about secession’s full implications—by breaking away from the country, a state wouldn’t merely be rejecting an unjust administration, but also rejecting our very Constitution as no longer worth defending within the system of government it establishes.
So what is the answer? Taking unconstitutional laws to court would certainly be worthwhile. So would Levin’s proposed remedies. But these aren’t magic bullets, and conservatives need to recognize that the problem is more complex than “good states versus evil feds.” Indeed, bad national politicians don’t just fall from the sky; they start out as bad state and local politicians.
Why do so many Americans accept statism? Because the rest of us have failed to be vigilant in our own backyards. For decades, we’ve let progressive presuppositions about government and society gradually infect our politics, education, and culture. To really change course, we must retake our institutions at the local level, particularly with renewed scrutiny of what our schools are—and aren’t—teaching. We can’t expect future generations to recognize betrayals of our founding principles if they don’t even recognize names like Locke or Publius.
We didn’t get here overnight, and we shouldn’t expect a constitutional rebirth overnight either. Every level of American government and society needs to be scrubbed clean. Meaningful, lasting reform is the work of generations, which will demand from each of us more patience, tenacity, and fortitude than ever before.
Medicare was a scam from the start. It had to be a scam because its ostensible purpose — providing health insurance for the elderly — was never the objective of its proponents. Instead, Medicare was a stepping stone to a utopia its champions dared not acknowledge: A compulsory universal-health-care system administered by government experts. FDR’s Committee on Economic Security initially intended to issue a health-care plan in conjunction with its universal, compulsory Social Security proposal in 1934. As Cato’s Charlotte Twight recounts, the former was dropped due to fear that pervasive opposition among the public and the medical profession would jeopardize passage of the latter. But Roosevelt got right back to it the day after he signed the 1935 Social Security Act, empowering the new Social Security Board to study the “related” area of health insurance.There followed three decades of progressive proposals, each shot down by lawmakers animated by fierce public dissent. The Left realized the dream of socializing the health-care sector was not attainable in one fell swoop, so an incremental strategy was adopted: Get a foot in the door with less ambitious proposals; establish the precedent of government control while avoiding debate over the principle of government control. “Incremental change,” said Medicare scholar Martha Derthick, “has less potential for generating conflict than change that involves innovation in principle.” […]More shrewdly, proponents misrepresented Medicare as an “insurance” program, with a “trust fund” into which working people paid “contributions” and beneficiaries paid “premiums” that would “entitle” them to claim “benefits.” In reality, there is no “trust fund.” Workers pay taxes — at levels that can no longer satisfy the pay-outs for current beneficiaries. This state of affairs was entirely predictable when Medicare was enacted in 1965 with the Baby Boom well underway. Back in the early days, when the program was flush, the surplus of taxes passed from the “trust fund” into the federal treasury, which redistributed the money to whatever chicanery Washington happened to be heaping money on. In return, the “trust fund” got an IOU, which would ultimately have to be satisfied by future taxes (or by borrowing from creditors who’d have to be repaid by taxpayers with interest). And the “premiums” largely turned out to be nonsense, too: The pols endeared themselves to elderly voters by arranging for Uncle Sam pick up more and more of the tab, or by using the government’s newfound market power to demand that providers accept lower payments.When Medicare was enacted in 1965, the inevitability of its many adverse consequences was crystal clear. The system was grossly underfunded. The fee-for-service structure (expertly described by Capretta) was certain to increase costs exorbitantly with no commensurate increase in quality of care (indeed, care is mediocre, or worse). But most palpably, the fact that government was at the wheel made Medicare instantly ripe for political gaming and demagoguery. The ensuing 46 years have not only made the obvious explicit; Medicare and its tens of trillions in unfunded liabilities are actually worse than even its most fearful early critics predicted it would be.
Former House Speaker Newt Gingrich steered the break-out of his presidential campaign into a ditch a couple of weeks ago by suggesting that the Ryan Medicare reform was “right-wing social engineering.” He was wrong, but not for the reason cited by his critics. To be more precise, Representative Ryan’s plan is a surrender to left-wing social engineering on terms the right wing naïvely believes it can accept. Ryan is the darling of a Washington breed of conservative wonk convinced that we can make the welfare state work if we just incorporate a few free-market, family-friendly tweaks […]Reformers such as Representative Ryan always ignore this inevitable trajectory of entitlement politics. They rationalize that they can make a government-sanctioned bribery system run better, or at least preempt Democrats from making it run worse. Hoping to stave off Medicare, congressional moderates in 1960 passed a bill to provide means-tested medical assistance to the elderly. It only greased the wheels for not only Medicare but Medicaid. In Massachusetts, Romneycare was another well-meaning attempt to install a compulsory statewide health-insurance system that would be less autocratic and costly than the one the Left would have imposed. It is, predictably, a disaster that tends toward ever-more-suffocating government control.