The Fake James Madison: Conservatives Selective Reading Of The Founding Fathers Threatens Social Security And Medicare
The House Republican plan to phase out Medicare is crashing and burning. Rep.-elect Kathy Hochul (D-NY) just won an impossible election victory by campaigning to keep Medicare alive. The Senate just soundly rejected the House GOP’s plan. Even former Speaker of the House Newt Gingrich, who once shut down the government in a failed attempt to force President Bill Clinton to support draconian Medicare cuts, blasted this Medicare-killing plan as “radical right-wing social engineering.”
Yet even as this concerted assault on Medicare hemorrhages support from elected officials, conservatives have a backdoor plan to get the courts to kill Medicare for them. Numerous lawmakers embrace a discredited theory of the Constitution that would not only end Medicare outright but also cause countless other cherished programs to be declared unconstitutional. Under this theory, Pell Grants, federal student loans, food stamps, federal disaster relief, Medicaid, income assistance for the poor, and even Social Security must all be eliminated as offensive to the Constitution.
In essence, supporters of this constitutional theory would so completely rewrite America’s social contract that they make Rep. Paul Ryan (R-WI), the author of the House GOP plan, look like Martin Luther King Jr. This issue brief explores the legal and historical gymnastics required to accept the conservative position that programs like Medicare and Social Security violate the Constitution.
The general welfare
Although Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, these powers are quite sweeping. They include the authority to regulate the national economy, build a national postal system, create comprehensive immigration and intellectual property regulation, maintain a military, and raise and spend money.
This last power, the authority to raise and spend money, is among Congress’s broadest powers. Under the Constitution, national leaders are free to spend money in any way they choose so long as they do so to “provide for the common defense and general welfare of the United States.” For this reason, laws such as Medicare and Social Security are obviously constitutional because they both raise and spend money to the benefit of all Americans upon their retirement.
Many members of Congress, however, do not believe the Constitution’s words mean what they say they mean. Consider the words of Sen. Rand Paul (R-KY), who recently explained the origin of the increasingly common belief that Congress’s constitutional spending power is so small that it can be drowned in a bathtub:
If you read [James] Madison, Madison will tell you what he thought of the Welfare Clause. He said, “Yeah, there is a General Welfare Clause, but if we meant that you can do anything, why would we have listed the enumerated powers?” Really, the Welfare Clause is bound by the enumerated powers that we gave the federal government.
In essence, Paul and many of his fellow conservatives believe Congress’s power to collect taxes and “provide for the common defense and general welfare of the United States” really only enables Congress to build post offices or fund wars or take other actions expressly authorized by some other part of the Constitution. According to this view, the spending power is not—as it is almost universally understood —itself an independent enumerated power authorizing Congress to spend money.
Paul’s understanding of the Spending Clause is not simply the idiosyncratic view of an outlier senator. Indeed, there is strong reason to believe his view is shared by the majority of his caucus. In the lead-up to the 2010 midterm elections, congressional Republicans released a “Pledge to America,” which broadly outlined their plans for governing if they were to prevail that November. In it, the lawmakers claimed that “lack of respect for the clear constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.”
This language suggests that many conservatives agree with Sen. Paul that Congress is somehow exceeding its constitutional authority to spend money. But there is no support for this view in constitutional text or in Supreme Court precedent.
In its very first decision to consider the issue—its 1936 decision in United States v. Butler—the Supreme Court unanimously affirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” as Sen. Paul would claim. Similarly, while the text of the Constitution establishes that “the exercise of the spending power must be in pursuit of ‘the general welfare,’” neither Sen. Paul nor the Pledge cites examples of laws that fail to meet this criterion.
Selectively reading Madison
While conservatives’ narrow understanding of the spending power finds no support in the text of the Constitution or in the Supreme Court’s decisions, Sen. Paul is correct that it does have one very famous supporter. In an 1831 missive, former President James Madison claimed that the best way to read the Spending Clause is to ignore its literal meaning and impose an extra-textual limit on Congressional power:
With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
Sen. Paul suggests that Madison’s extra-textual limit is both authoritative and binding—even if it means that programs ranging from Social Security to Medicare to Pell Grants must all cease to exist. But it is a mistake to assume that Madison’s preferred construction of the Spending Clause must restrict modern-day congressional action.
First of all, even the most prominent supporters of “originalism”—the belief that the Constitution must be read exactly as it was understood at the time it was written—reject the view that an individual framer’s intentions can change constitutional meaning. As the nation’s leading originalist, Supreme Court Justice Antonin Scalia, explains, “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”
Indeed, Madison himself would have been dismayed by the claim that an established understanding of the Constitution must bend to his own singular views. Like Scalia, Madison rejected the notion that the framers’ personal desires can defeat the words they actually committed to text. As he explained to future President Martin Van Buren, “I am aware that the document must speak for itself, and that that intention cannot be substituted for [the intention derived through] the established rules of interpretation.”
Secondly, Madison embraced a way of interpreting the Constitution reminiscent of the evolving theories of constitutional interpretation that are so widely decried by modern conservatives. Although Rep. Madison opposed on constitutional grounds the creation of the First Bank of the United States in 1791, President Madison signed into law an act creating the Second Bank in 1816. He “recognized that Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted” the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”
The Constitution is not a scavenger hunt
Even if we must, as Sen. Paul suggests, be bound by the Founding Fathers’ subjective intentions, Madison’s understanding of the Constitution hardly reflects the consensus view among those who created it. The truth is that Madison’s voice was merely one of many competing voices among the founding generation—and his vision of the Constitution was eventually rejected by no less a figure than George Washington himself.
Madison’s chief antagonist in early debates about constitutional meaning was Alexander Hamilton. As the nation’s first secretary of the treasury, Hamilton offered an interpretation of the Spending Clause that closely resembles the modern understanding:
These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
Hamilton’s understanding of the spending power was one part of a broader, more expansive vision of congressional power that also included a robust interpretation of Congress’s power under the Constitution’s Necessary and Proper Clause. This broader understanding of Congress’s role prevailed over Madison’s very limited one during the earliest days of the Republic. Hamilton was the chief advocate who convinced President George Washington to sign the First Bank bill over Madison’s objections.
The point here is not that constitutional interpretations should be played like the card game “War,” where conservatives play the Madison card and everyone else plays the Washington card, and whoever plays the higher card wins. Rather, the point is simply that conservatives are wrong to treat the Founding Fathers’ statements as if they were a menu that lawmakers can search through and order the kind of Constitution they want. The Constitution is not a scavenger hunt.
Moreover, it is hardly necessary to dismiss Madison’s tremendous contributions to the Constitution itself in order to recognize why America should not relitigate a 230-year-old argument about America’s power to spend money on programs like Medicare. Hamilton was undoubtedly correct that his own reading of the Spending Clause is more consistent with the Constitution’s text than the reading offered by Madison—Madison himself concedes as much—but Madison was also correct to warn that the nation rejects a longstanding and widely accepted constitutional interpretation at its peril.
Millions of Americans depend upon programs such as Social Security, Medicare, and federal student loans, and America has grown into the wealthiest and most prosperous nation ever to exist in the years since these programs were enacted. Throughout this golden age, not one Supreme Court justice has questioned what Justice Scalia recently told a gathering of members of Congress: “It’s up to Congress how you want to appropriate, basically.”
Conclusion
Few things are certain in American politics, but after this week one thing is crystal clear—the American people cherish Medicare and they want no truck with an agenda that would destroy it. Sadly, far too many conservative lawmakers refuse to listen to their constituents on this basic and obvious point—to the extent of inventing a theory of constitutional interpretation that would achieve their goal of ending Medicare far sooner than the House Republicans’ ill-considered budget.
Conservatives will tell you that killing Medicare is the only way to read the Constitution consistently with the framers’ intent. Don’t believe them. The truth is that the only way to reach this conclusion is to hunt through the framers’ statements, cherry pick statements that conservatives like, and ignore the very text of the Constitution itself in the process.
By: Ian Millhiser, Center for American Progress, May 27, 2011
Is Obama “American” Enough For The Far Right Now?
Now that President Obama and his national security team have proven their mettle in pursuing and finally eliminating the supreme Islamic terrorist, a question arises: Will the not-insignificant chunk of voters who have rejected the president’s basic legitimacy — expressing skepticism about the circumstances of his birth in the face of conclusive proof that he was born here — be more likely to view Obama as “American” now?
On CNN’s “Reliable Sources” over the weekend, Washington Post reporter Nia-Malika Henderson suggested that the birther movement may not be about race. She compared the buzz around the issue to those conspiracy-minded individuals who tied Bill Clinton to the “murder” of Vince Foster in 1993 — an observation that other have made as well. It just seems too easy to describe the ruling passion of those who label President Obama a secret Muslim (or, to recall Mike Huckabee’s infamous slur, a Kenyan revolutionary), as strictly racist. History, though, yields enough clues to suggest that journalists who look for alternative explanations are wrong.
Birtherism has a distinctive history. If you go to the birther.org website, you will find a history lesson along with their creed: “The Birthers: Dedicated to the Rebirth of the Constitutional Republic.” Much like the Tea Partiers, birthers have linked themselves to America’s founding fathers. Their fealty to the Constitution is centered on a single phrase in Article II that requires the president to be a “natural born citizen.”
What does the all-important phrase mean? Birthers interpreting Article II say that “the president must above all else be loyal to this nation.” It is a “self-evident” truth that such loyalty is drawn from nature–and they are quite explicit about what that means: “kinship, our most primitive and natural form of citizenship, from blood”; a nativity which comes “from the soil,” or “place of birth.” It is an ideal of kinship that energizes the birther movement—the transmission of civic identity by descent, through bloodlines, from parents to children.
The website also makes it clear that, for birthers, a natural-born president must have natural-born parents, and that civic identity only exists in a homogeneous population. “If the parents were split in their loyalties,” the website declares, “the child would be split in loyalty to America.” Mixed heritage is thus a liability, for it undermines proper patriotic breeding. Indeed, for the birthers, the breeding question is inextricably linked to a person’s genetic vulnerability.
President Obama was raised by his white, midwestern mother, and her parents. But his actual upbringing matters not a bit to birthers. For most of them, Obama is his father’s son, because kinship is measured though the traditional order of the father’s line. To make their claims stick, birthers have had to erase President Obama’s mother from the fanciful narrative of his African birth. Just as Glenn Beck indelicately declared that Obama had an instinctive hatred of white people, birthers divorced him from his mother’s family. The father he hardly knew remains the dominant force in his life; the president cannot be an American because he is loyal to his patriarchal line, that is, to his father’s race.
Not surprisingly, the birthers have the Constitution all wrong. The delegates who attended the convention in Philadelphia in 1787 were not much concerned with the president’s nativity. In establishing the chief executive’s qualifications, the initial proposal focused on age and duration of residency, and said nothing about his being a “natural born citizen.” The founders made no mention of any requirement that the parents of the president be natural born citizens either. Nor, for that matter, did they require the president to be a Christian. Abigail Adams, the wife of the second president, referred to her daughter-in-law, Louisa Catherine, who married John Quincy Adams, as a “half blood”; by this cultural (though not legalistic) designation she meant that one parent was American, the other English. In sum, the founders could easily have specified that the president have “natural born” parents. But they did not. The reason is obvious. Any talk about kinship and bloodlines bore the taint of aristocracy and royalty, a caste system the founders had rejected during the Revolution.
The convention delegates did, however, vigorously debate the requirements for senators and representatives. Some delegates expressed fears of “foreign attachments”; future vice president Elbridge Gerry of Massachusetts indulged in some wild conspiracy mongering when he proposed longer residency requirements for House members to prevent the possibility that foreign governments (he meant the British) might send spies to infiltrate the federal government. He hoped that, in the future, only the native-born would be eligible to serve in the House.
Yet even Gerry could never have imagined the 21st-century birther conspiracy, the most extreme versions of which evoked the “Manchurian Candidate,” a plot so cleverly devised that the institution of the presidency could be subverted by placing a secret Muslim in the White House. In fact, the deepest fear the founders expressed had nothing to do with the president’s qualifications. Instead, it was the military powers with which the Constitution endows him. They worried that as commander-in-chief, he might be bought off by a foreign government and drawn into unnecessary wars at the behest of an ally to whom he felt personally indebted. To counteract their fear, the framers insisted that Congress alone be authorized to declare war.
Despite all their efforts, the birther movement cannot look to the founders for its inspiration. Their ideas grow out of a traditional obsession with the legal status of free blacks and mulattos in the decades before the Civil War. When a firestorm of debate flared over Missouri’s admission to the Union in 1819-1820, northern and southern congressmen tangled and principles yielded to racial prejudices. Missouri’s proposed constitution barred blacks from entering the state who were not the legal property of white men. While northerners argued that free blacks were not “aliens or slaves,” but “free citizens,” opposing politicians and jurists twisted the law to justify the argument that native born free black Americans could be denied the same constitutional protections that native-born white Americans claimed. In the years before the South finally seceded, judges issued decisions in which free blacks were described as “our wards” or “strangers to our Constitutions.” Mississippi’s highest court categorized free U.S. residents of African descent as “alien strangers.”
The question of how to define a natural-born citizen reached the Supreme Court in the notorious Dred Scott case of 1857. Chief Justice Roger B. Taney (appointed by unapologetic slave-owner Andrew Jackson) argued that free blacks were never contemplated by the founders as part of the national community. Insisting that African Americans were not recognized as citizens in any state, before or after the Revolution, he dismissed all contrary evidence. To Taney, as with the birthers, facts were irrelevant.
Taney’s goal was to restrict citizenship to one of two processes: naturalization or biological inheritance. Blacks had been explicitly excluded from citizenship in the federal Naturalization Act of 1790, he noted. Even more telling, according to constitutional historian James Kettner, Taney wished to ignore “volumes of judicial precedents emphasizing place of birth without regard to ancestry.” Taney thus transformed “natural born citizen” into a racial category.
The birthers have the same idea in mind. Ultimately, they don’t really care what it says on President Obama’s birth certificate, short or long form. For these modern-day Taneyites, Obama’s citizenship is questionable because his civic identity is tainted by descent — he is, unmistakably, the son of an African man. The birthers, like Taney, believe that a natural-born citizen must be possess the right pedigree: he must descend from the same race as the founders, or be born on U.S. soil in the image of the founders. For Taney, the national community was a closed community. Even if they haven’t gone so far as to say so explicitly, for today’s birthers the presidency is an exclusive club.
Their obsession with placing Obama in Africa at the moment of his birth was a means to diminish the influence of his mother, Stanley Ann Dunham. Republican hopefuls Newt Gingrich and Mike Huckabee deliberately circulated the strange story that Obama’s politics can be traced, genetically, to the anti-colonial revolutionary rhetoric that once existed in his father’s homeland.
But what about the equally ridiculous claim that Obama’s paternal grandmother testified to her grandson’s birth in Kenya? Why did that idea capture birthers’ imaginations? Here, historical precedent may again shed light. In 1907, a law was passed in the United States stating that any natural-born female who married an alien automatically lost her citizenship. She was expatriated without her consent. Compare that to the law that prevailed from 1855 to 1922, by which any alien woman who married an American citizen immediately became a citizen, bypassing the normal naturalization process.
It was a longstanding tradition in American history that a wife’s civil and political rights came through her husband. Under the law, marriage made husband and wife “one person.” The argument that citizens cannot have two allegiances was applied to wives: her first allegiance was to her husband. She could not vote or exercise political rights, because she had no independent civic identity. Her husband acted as her political proxy, voting in her stead. Recall that women did to receive the right to vote until 1920.
The birthers, too, in recurring to antiquated racist assumptions, assume that President Obama cannot have dual allegiances. Either he is all-American or else his true loyalty resides elsewhere. Birthers have made Obama’s mother a cipher all over again. Her political identity was subsumed into her African husband’s. In effect, he “voted” for her. Because she is deceased, it has been easy for birthers (not to mention the hubristic Donald Trump) to erase the president’s mother from the picture. She was never able to testify. And her World War II hero father presumably had no need to; his service to his country should have spoken volumes.
At the time of the 1907 law, women who married aliens were considered unpatriotic. Until 1967, interracial marriages could still be considered illegal in most southern states. What matters to birthers, subconsciously or otherwise, is the taint of foreign blood, the taint of African blood, Obama, Sr.’s alien status. Stanley Ann Dunham had made an unnatural and unpatriotic choice of a husband.
The racism of the birther movement, then, is not just a wacko conspiracy. Adherents of this new old cause have a large following because of our country’s troubled history. Of course, Americans are by no means the only culture to rationalize discrimination on racial and gender grounds. It happens on every continent, constantly. In the modern age, anxiety over what makes a “real” American is most often tied to wartime, or “Cold War time”; but in this case, it was the “national emergency” of a person becoming president whose physiognomy tapped into vestigial fears.
Finally, there is the newly hatched probe (thank you, once again, Donald) into the president’s educational pedigree. For hardcore birthers, President Obama cannot possibly deserve his office. There must be a catch somewhere. How, akin to “uppity” free blacks past, did he move into elite circles from which black aspirants were traditionally barred? The world has been turned upside down for birthers.
The term “birther” has always sounded idiotic. If they want a more legitimate-sounding name, they should call themselves “descenters.” For what they really seem to be defending is that every child inherits his nationality from his father, just as he inherits his surname: Barack Hussein Obama II instead of Barry Dunham.
In their campaign to unearth the secret life of President Obama, birthers make descent more important than consent — the republican principle that Americans choose their officeholders by popular election. For them, nature trumps consent. According to their logic, natural-born presidents have natural-born American parents. And by nature, they mean the traits passed down from one’s ancestors to his rightful heirs. We’ve seen this logical construction before: it worked for something known as the “divine right of kings.” Loyalty to the sovereign? Didn’t we, at some point, declare national independence in order to move beyond that sort of thinking?
So maybe those who suggest that it’s not just racism that motivates the birthers really are on to something. Maybe it’s something that really is un-American..
By: Andrew Burstein and Nancy Isenberg, Salon War Room, May 4, 2011
Mitt! Mitt! Mitt!: It’s A Bad Sign When One Of Your Errors Is Your Book Title
This was the week we’ve been waiting for! Decades into the future, you will be able to tell your grandchildren where you were when Mitt Romney announced that he had formed a presidential exploratory committee.
Who knew he needed to explore? He said he was running on his Christmas card, for Lord’s sake.
My job today is to give you a run-through of every book Mitt Romney has ever written. Fortunately, there are only two: “Turnaround,” which is about his stint as the leader of the troubled 2002 Salt Lake City Olympic Games, and “No Apology,” his campaign tome, which used to be subtitled “The Case for American Greatness” but is now “Believe in America.”
Perhaps three. When the new paperback edition of “No Apology” came out in February, early readers noted that not only had Romney added a new subtitle but also a new preface, ranting about the founders-hating big spenders who are now running the country. And, most notably, he had also changed some critical chunks of the original to make the text more Tea Party-friendly.
For instance, paperback Romney has now noticed that the Massachusetts health insurance law that he championed as governor does have some flaws, all of which are because of anti-freedom provisions that the Democrats in the State Legislature put in. Also, the stimulus was way, way worse than he originally thought.
We all know that Mitt has a habit of, um, mutating to the political winds. So even in its earlier incarnation, the book had a decidedly uneven tone. “Despite my affiliation with the Republican Party, I don’t think of myself as highly partisan,” Moderate Mitt wrote toward the end. This comes after 300 pages of unrelenting attacks on Barack Obama and every member of his party since Andrew Jackson. He blames Bill Clinton for everything from cutting military spending to presiding over an administration during which “birth to teenage mothers rose to their highest level in decades.” I’m sure this week’s Romney does not regard that as a partisan statement even though teenage birth rates actually fell spectacularly during that exact period.
The book is heavy into policy and rather sparse on personal history, except for the parts that relate to his dad being a successful businessman and Mitt himself being an entrepreneurial hero along the deal-making, business-closing, job-slashing private equity line. Romney’s earlier book, “Turnaround,” had some great stories about his Mormon ancestors, including a great-grandmother who single-handedly drove her children to Mexico in a covered wagon during the Indian wars. “At one point along the way, she came across freshly slaughtered U.S. Cavalry horses. She paused only long enough to pry the shoes from the wasted horses, re-shod her own wagon horses, and journey on,” he wrote. Truly, “No Apology” could use a whole lot more of Hannah Romney and a whole lot less about the causes of the decline of the Ottoman Empire.
Also, there is not a single mention in “No Apology” of the fact that Romney once drove to Canada with the family Irish setter strapped to the roof of the car. I regard this as a critical oversight, although perhaps it was Seamus that Romney was thinking of when he chose his title.
But, according to the book, “No Apology” refers to Romney’s objections to President Obama’s alleged habit of going around the world, asking other countries to forgive America for its faults. This Obama apologizing tour is an article of Tea Party faith, but one that PolitiFact analyzed a while back and found it to be false. (“Yes, there is criticism in some of his speeches, but it’s typically leavened by praise for the United States and its ideals.”)
Anybody can make a mistake, but it’s a bad sign when one of your errors is your title.
Of all the awful books by presidential candidates I have read this year, “No Apology” was the hardest to get through. To be fair, Romney does write a lot about the issues, but in a way that makes you feel as if you’re trapped at a school assembly where a long-winded donor is telling you what life is all about. (“If I may return to my engine analogy from earlier in this chapter: Our economy is powered by two pistons …”)
“Turnaround” is a much easier book to read, even though it requires a pretty keen interest in how the Salt Lake City Olympics planners saved the day after Mitt took over in 1999. I was particularly fascinated by Romney’s insistent contention that he is a fun guy. (“I love jokes, and I love laughing.”) There is not much evidence of actual humor, although Romney says that when he visited the Clinton White House, he prankishly protested being given a visitor’s badge that had a red A on it, saying, “I’m not the one that cheated on my wife.”
Maybe you had to be there.
By: Gail Collins, Op-Ed Columnist, The New York Times, April 15, 2011
Judge Vinson’s Tea Party Manifesto
Mark Hall, Fred and Elizabeth Turnage Professor of Law, Wake Forest University School of Law
On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto. At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.
As I’ve written elsewhere, the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals. But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides: “(all of [these] are obviously distinguishable)” (p. 39). Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence.
Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause. In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate’s necessity, explaining, for instance, that:
this Act has been analogized to a finely crafted watch . . . . It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper
So if the mandate is so clearly necessary, why is it not “proper.” The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology: because the Commerce Clause does not permit it. Here are critical excerpts:
the Clause is not an independent source of federal power (p. 58) . . . Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. (p. 60)
In light of [United States v. South-Eastern Underwriters], the “end” of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly “legitimate” and “within the scope of the constitution.” But, the means used to serve that end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” . . . The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. (p. 62)
The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.” (p. 63)
My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power. And this is inconsistent with Lopez and with Justice Scalia’s concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices.
By: Professor Mark Hall, Health Reform Watch, January 31, 2011
Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798
The ink was barely dry on the PPACA when the first of many lawsuits to block the mandated health insurance provisions of the law was filed in a Florida District Court.
The pleadings, in part, read –
The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.
It turns out, the Founding Fathers would beg to disagree.
In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
Here’s how it happened.
During the early years of our union, the nation’s leaders realized that foreign trade would be essential to the young country’s ability to create a viable economy. To make it work, they relied on the nation’s private merchant ships – and the sailors that made them go – to be the instruments of this trade.
The problem was that a merchant mariner’s job was a difficult and dangerous undertaking in those days. Sailors were constantly hurting themselves, picking up weird tropical diseases, etc.
The troublesome reductions in manpower caused by back strains, twisted ankles and strange diseases often left a ship’s captain without enough sailors to get underway – a problem both bad for business and a strain on the nation’s economy.
But those were the days when members of Congress still used their collective heads to solve problems – not create them.
Realizing that a healthy maritime workforce was essential to the ability of our private merchant ships to engage in foreign trade, Congress and the President resolved to do something about it.
Enter “An Act for The Relief of Sick and Disabled Seamen”.
I encourage you to read the law as, in those days, legislation was short, to the point and fairly easy to understand.
The law did a number of fascinating things.
First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.
This is pretty much how it works today in the European nations that conduct socialized medical programs for its citizens – although 1% of wages doesn’t quite cut it any longer.
The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services. Upon passage of the law, ships were no longer permitted to sail in and out of our ports if the health care tax had not been collected by the ship owners and paid over to the government – thus the creation of the first payroll tax in our nation’s history.
When a sick or injured sailor needed medical assistance, the government would confirm that his payments had been collected and turned over by his employer and would then give the sailor a voucher entitling him to admission to the hospital where he would be treated for whatever ailed him.
While a few of the healthcare facilities accepting the government voucher were privately operated, the majority of the treatment was given out at the federal maritime hospitals that were built and operated by the government in the nation’s largest ports.
As the nation grew and expanded, the system was also expanded to cover sailors working the private vessels sailing the Mississippi and Ohio rivers.
The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.
So much for the claim that “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty….”
As for Congress’ understanding of the limits of the Constitution at the time the Act was passed, it is worth noting that Thomas Jefferson was the President of the Senate during the 5th Congress while Jonathan Dayton, the youngest man to sign the United States Constitution, was the Speaker of the House.
While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.
Yes, the law at that time required only merchant sailors to purchase health care coverage. Thus, one could argue that nobody was forcing anyone to become a merchant sailor and, therefore, they were not required to purchase health care coverage unless they chose to pursue a career at sea.
However, this is no different than what we are looking at today.
Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.
Would that be practical? Of course not – just as it would have been impractical for a man seeking employment as a merchant sailor in 1798 to turn down a job on a ship because he would be required by law to purchase health care coverage.
What’s more, a constitutional challenge to the legality of mandated health care cannot exist based on the number of people who are required to purchase the coverage – it must necessarily be based on whether any American can be so required.
Clearly, the nation’s founders serving in the 5th Congress, and there were many of them, believed that mandated health insurance coverage was permitted within the limits established by our Constitution.
The moral to the story is that the political right-wing has to stop pretending they have the blessings of the Founding Fathers as their excuse to oppose whatever this president has to offer.
History makes it abundantly clear that they do not.
By: Rick Ungar, The Policy Page, Forbes-Originally Posted January 17, 2011
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