“Enumerated Powers” And The Radicalism of The GOP Thought Process
Republican presidential hopeful Rick Perry chatted with The Daily Beast yesterday, and was asked about his understanding of “general welfare” under the Constitution. The left, the Texas governor was told, would defend Social Security and Medicare as constitutional under this clause, and asked Perry to explain his own approach. He replied:
“I don’t think our founding fathers, when they were putting the term ‘general welfare’ in there, were thinking about a federally operated program of pensions nor a federally operated program of health care. What they clearly said was that those were issues that the states need to address. Not the federal government. I stand very clear on that. From my perspective, the states could substantially better operate those programs if that’s what those states decided to do.”
It’s worth pausing to appreciate the radicalism of this position. When congressional Republicans, for example, push to end Medicare and replace it with a privatized voucher scheme, they make a fiscal argument — the GOP prefers to push the costs away from the government and onto individuals and families as a way of reducing the deficit.
But Perry is arguing programs like Medicare and Social Security aren’t just too expensive; he’s also saying they shouldn’t exist in the first place because he perceives them as unconstitutional. Indeed, when pressed on what “general welfare” might include if Medicare and Social Security don’t make the cut, the Texas governor literally didn’t say a word.
Now, this far-right extremism may not come as too big a surprise to those familiar with Perry’s worldview. He’s rather obsessed with the 10th Amendment — unless we’re talking about gays or abortion — and George Will recently touted him as a “10th Amendment conservative.” Perry’s radicalism is largely expected.
It’s worth noting, then, that Mitt Romney seems to be in a similar boat. He was asked in last night’s debate about his hard-to-describe approach to health care policy, and the extent to which his state-based law served as a model for the Affordable Care Act. Romney argued:
“There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the 10th Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved by the states and the people.”
What I’d really like to know is whether Romney means this, and if so, how much. Because if he’s serious about this interpretation of the law, and he intends to govern under the assumption that powers not specifically granted to the federal government are reserved by the states and the people, then a Romney administration would be every bit as radical as a Perry administration.
After all, the power to extend health care coverage to seniors obviously isn’t a power specifically granted to the federal government, so by Romney’s reasoning, like Perry’s, Medicare shouldn’t exist. Neither should Social Security, the Civil Rights Act, the Clean Air Act, student loans, FEMA, or many other benchmarks of modern American life.
And if Romney doesn’t believe this, and he’s comfortable with Medicare’s constitutionality, maybe he could explain why the federal government has the constitutional authority to bring health care coverage to a 65-year-old American, but not a 64-year-old American.
By: Steve Benen, Contributing Writer, Washington Monthly-Political Animal, August 12, 2011
The 11th Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution
The key passage in today’s opinion striking down part of the Affordable Care Act appears on page 113, where the two judge majority explains how they will determine whether this law is constitutional:
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution.
A law requiring most Americans to either carry insurance or pay slightly more taxes clearly regulates the national market for health care. It determines how people will finance health care purchases. It lowers the cost of health insurance. And it protects that market from something known as an “adverse selection death spiral.” So that should have been the end of the case. The Court cites no provision of the Constitution limiting Congress’ authority to pass this law because no such provision exists.
Instead, it imposes two extra-textual limits on national leaders’ ability to solve national problems. If the law is somehow “unprecedented,” and if a decision upholding the law lacks vague and undetermined “meaningful limit[s]” on Congress’ authority that somehow upset the balance between federal and state power, then the law must be struck down even if the Constitution’s text says otherwise.
Yet even if these two novel limits are taken seriously, the court’s analysis still makes no sense. For one thing, the law is only “unprecedented” in the sense that it preferred a market-driven solution to the problem of widespread uninsurance over more government driven solutions such as Medicare. The truth is that Congress already requires nearly all Americans to purchase health insurance — and they have done so for many years. Every year the federal government collects taxes which are in no way optional. A portion of these taxes are then spent to buy health insurance for the elderly (Medicare) for the poor (Medicaid) and for children (SCHIP).
So the only real question in this case is whether the government is required to first take your money and then buy health coverage for you, or whether the Constitution allows Congress to cut out the middle man.
The Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Because the ACA’s regulation of the national insurance market cannot function without a requirement that nearly every American carry insurance. this requirement is clearly constitutional under Justice Scalia’s statement that Congress possess “every power needed” to make it’s economic regulations effective. Moreover, upholding the Affordable Care Act under Justice Scalia’s rule would require a court to do nothing more than hold that the Affordable Care Act is constitutional. There is no federal law which depends upon mandatory broccoli purchases, for example, in order to function properly in the same way that the ACA’s preexisting conditions provision can only function properly in the presence of an insurance coverage requirement. Accordingly, the court’s concern that upholding the law would destroy any limits on federal power is unwarranted.
As a final note, it is likely that conservatives will tout the fact that Judge Hull was appointed by President Clinton in the same way that progressives touted Bush-appointed Judge Sutton’s decision rejecting an ACA challenge. The two judges are not comparable, however. Judge Sutton is a former Scalia clerk who stood on the vanguard of the conservative legal movement for many years. Judge Hull, by contrast, is a compromise nominee Clinton selected in order to overcome obstruction from the Republican-controlled Senate.
Hull has a long record of conservative criminal and individual rights decisions. We now know that she is also very far to the right questions of federal power. That is unfortunate, but it also places her well to the right of some of the Supreme Court’s most conservative members.
By: Ian Millhiser, U. S. News and World Report, August 12, 2011
From Crazy To Insane: Conservatives Still Want More In Debt Ceiling Deal
Over on the progressive side of politics, they’re nursing their wounds and drowning their sorrows as details of the deal to increase the debt ceiling emerge. They feel like they lost to a Republican party that dug in and used the debt ceiling to achieve their goal of dramatically shrinking government spending and solving the deficit problem without raising a single penny in new revenue.
So they might be surprised to know that conservatives don’t think they won, either. The right, despite apparently negotiating Obama into a corner that pits him against large parts of his base, still isn’t satisfied.
“While this deal is moving in the right direction rhetorically thanks to pressure from conservatives, it still falls well short of the standards we have consistently laid out,” wrote the Heritage Action’s Michael Needham.
The group, a sister organization to the Heritage Foundation, says the upfront cuts included in the reported deal are “insufficient” and the super committee in charge of creating the next round of deficit reduction is a bad idea as reported.
“This deal highlights how dysfunctional Washington has become and we will continue to oppose it as insufficient to the task at hand,” Needham wrote.
On TV Sunday morning, Sen. Lindsey Graham (R-SC) said he expected a large number of conservatives to share Heritage’s view.
“It’s a $3 trillion package that will allow $7 trillion to be added to the debt in the next decade,” Graham said, dismissively. “So how much celebrating are you going to do?”
Graham said he expected around half of the House GOP caucus to vote against the deal. It doesn’t have his vote yet, either.
One of the patron saints of those hardcore conservative Republicans in the House, blogger Erick Erickson, is also underwhelmed by the deal (it’s not the first time.)
Despite the fact that progressives and Democrats are publicly lamenting the reported deal as indicative of the effect of rhetoric like Erickson’s has had on Washington, Erickson sounds as if he feels as betrayed as some on the left.
“What we know about the pending deal is that the Democrats and Republicans are agreeing to a Deficit Commission,” Erickson wrote Sunday. “Despite the media spin — and the spin of some Republican sycophants — the deficit commission, which will be a super committee of the Congress, will have the power to come up with new tax revenue.”
By: Evan McMorris-Santero, Talking Points Memo, July 31, 2011
Rejecting The GOP’s ‘Hezbollah Faction’: Where Are The Sane Republicans?
I found a lot to disagree with in Thomas Friedman’s column today, but his criticism of the Republican Party’s base rings true.
The Tea Party … is so lacking in any aspiration for American greatness, so dominated by the narrowest visions for our country and so ignorant of the fact that it was not tax cuts that made America great but our unique public-private partnerships across the generations. If sane Republicans do not stand up to this Hezbollah faction in their midst, the Tea Party will take the G.O.P. on a suicide mission.
This strikes me as fair, and it got me thinking about a question a friend of mine asked me the other day: where are the “sane Republicans” willing to “stand up to this Hezbollah faction in their midst”? Where are Bob Dole and John Warner? Why can’t John Danforth and Colin Powell express their disapproval for what their party is doing? Maybe some of Reagan’s old guard, like Ken Duberstein, could speak up?
The party is not without elder statesmen and women. They couldn’t possibly see their party’s antics on Capitol Hill and feel a sense of pride. Maybe it’s time they say so?
A regular reader recently passed along this item from Robert Prather, published a week ago on the center-right Outside the Beltway blog, about his sense of what’s become of the GOP.
I’ve been moving to the left for a few years now, but these idiots are radicalizing me. I’ve never voted for a Democrat in my life (full disclosure: I didn’t vote the last two elections due to moving), but I doubt I’ll ever vote for a Republican again. They’re either stupid or evil, but either way they’re dangerous and bad for the country.
I don’t know much about Prather’s political background, and maybe he’s an anomaly. But shouldn’t there be a legion of Republicans — former office holders, party loyalists, life-long members, all of the above — who are sympathetic to this perspective?
We’re not talking about GOP officials taking a hard line on some random piece of legislation, or nominating some radical for a key public office. We’re talking about congressional Republicans who’ve decided to play a game of chicken with the full faith and credit of the United States — something no American institution has ever done in more than two centuries — and who are fully prepared to trash the constitutional principle next week as part of a hostage strategy gone horribly awry?
Are there no noteworthy Republicans watching this, willing to say, “My party is simply going too far”?
By: Steve Benen, Contributing Writer, Washington Monthly Political Animal, July 27, 2011
GOP Leaders Must Free Themselves From The Tea Party’s Grip
Media reports are touting the Senate’s Gang of Six and its new budget outline. But the news that explains why the nation is caught in this debt-ceiling fiasco is the gang warfare inside the Republican Party. We are witnessing the disintegration of Tea Party Republicanism.
The Tea Party’s followers have endangered the nation’s credit rating and the GOP by pushing both House Speaker John Boehner and Majority Leader Eric Cantor away from their own best instincts.
Cantor worked amicably with the negotiating group organized by Vice President Joe Biden and won praise for his focus even from liberal staffers who have no use for his politics.
Yet when the Biden group seemed close to a deal, it was shot down by the Tea Party’s champions. Boehner left Cantor exposed as the frontman in the Biden talks and did little to rescue him.
Then it was Boehner’s turn on the firing line. He came near a bigger budget deal with President Obama, but the same right-wing rejectionists blew this up, too. Cantor evened the score by serving as a spokesman for Republicans opposed to any tax increase of any kind.
Think about the underlying dynamic here. The evidence suggests that both Boehner and Cantor understand the peril of the game their Republican colleagues are playing. They know we are closer than we think to having the credit rating of the United States downgraded. This may happen before Aug. 2, the date everyone is using as the deadline for action.
Unfortunately, neither of the two House leaders seems in a position to tell the obstreperous right that it is flatly and dangerously wrong when it claims that default is of little consequence. Rarely has a congressional leadership seemed so powerless.
Compare the impasse Boehner and Cantor are in with the aggressive maneuvering of Senate Republican Leader Mitch McConnell. He knows how damaging default would be and is working with Senate Majority Leader Harry Reid to concoct a way out.
McConnell can do this because he doesn’t confront the Tea Party problem that so bedevils Boehner and Cantor. Many of the Tea Party’s Senate candidates — Sharron Angle in Nevada, Christine O’Donnell in Delaware and Joe Miller in Alaska — lost in 2010. Boehner and Cantor, by contrast, owe their majority in part to Tea Party supporters. McConnell has a certain freedom to govern that his House leadership colleagues do not.
And this is why Republicans are going to have to shake themselves loose from the Tea Party. Quite simply, the Tea Party’s legions are not interested in governing, at least as governing is normally understood in a democracy with separated powers. They believe that because the Republicans won one house of Congress in one election, they have a mandate to do whatever the right wing wants. A Democratic president and Senate are dismissed as irrelevant nuisances, although they were elected, too.
The Tea Party lives in an intellectual bubble where the answers to every problem lie in books by F.A. Hayek, Glenn Beck or Ayn Rand. Rand’s anti-government writings, regarded by her followers as modern-day scripture — Rand, an atheist, would have bridled at that comparison — are particularly instructive.
When the hero of Rand’s breakthrough novel, “The Fountainhead,” doesn’t get what he wants, he blows up a building. Rand’s followers see that as gallant. So perhaps it shouldn’t surprise us that blowing up our government doesn’t seem to be a big deal to some of the new radical individualists in our House of Representatives.
Our country is on the edge. Our capital looks like a lunatic asylum to many of our own citizens and much of the world. We need to act now to restore certainty by extending the debt ceiling through the end of this Congress.
Boehner and Cantor don’t have time to stretch things out to appease their unappeasable members, and they should settle their issues with each other later. Nor do we have time to work through the ideas from the Gang of Six. The Gang has come forward too late with too little detail. Their suggestions should be debated seriously, not rushed through.
Republicans need to decide whether they want to be responsible conservatives or whether they will let the Tea Party destroy the House That Lincoln Built in a glorious explosion. Such pyrotechnics may look great to some people on the pages of a novel or in a movie, but they’re rather unpleasant when experienced in real life.
By: E. J. Dionne, Opinion Writer, The Washington Post, July 20, 2011
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