How Far Can Congress Really Go?

How Far Can Congress Really Go?
By Bill Murchison
2/1/2011

In news stories about Obamacare, the usual journalistic formulation is, "This will be," "That will be," "Citizens will," "Companies will," etc.

The assumption is that you will, or he will, or whoever will, because as duly enacted and signed into law, Obamacare will -- that word again -- descend on us at a date certain. A more cautious formulation would be "would" -- the subjunctive case. Maybe, maybe not, is its meaning.

I have no quarrel with the journalistic predilection for assuming that what Congress enacts will go into effect. From the looks of things, nonetheless, the state of Obamacare is subjunctive with a capital "S" -- the latest indication being the U.S. district court decision this week in Florida, which struck down the whole law as unconstitutional and void.

The mandate to buy health insurance exceeds congressional authority under the power to regulate interstate commerce, says Judge Roger Vinson in a case brought by governors or attorneys general of 26 states. Nor does Vinson buy into the argument that the Constitution's "necessary and proper" clause confers authority on Congress in this instance to set up so vast and far-reaching a scheme. With no language to "sever" an unconstitutional portion of the law from the law as a whole, the scheme as a whole has to go.

U.S. District Judge Henry E. Hudson of Richmond, Va., reached a similar conclusion last year, except that in striking down the purchase mandate, Hudson allowed the rest of the law to stand. Now to the Supreme Court for instruction in the meaning of government.

The constitutionality of the purchase mandate is only by courtesy the central principle at stake. The main question is, can the federal government do whatever it wants to or can't it? There has been plentiful, and healthy, discussion of the question in recent months.

In the eyes of people who see national takeover of health care financing as an essential affair, the mandate is good. That would be because the mandate (on which the takeover depends) strikes them as vital, whatever it may mean for the national government to regulate commercial transactions and incidents among the states. These people's logic -- as they see it -- fails to move people who don't approve of requiring people to buy something: in the present case, insurance. The "what" in these matters -- health care -- outranks the "how" -- namely, the mandate.

The "how" sounds to many like some complicated and theoretical question from a constitutional law seminar, c. 1920. Not so. The "how" of things in government matters intensely and immensely. That is to say, does the end justify the means? Does it matter how we do things, so long as the things seem to us, broadly speaking, desirable and good? Or does the use of bad means impeach the whole project? We have here one of the great enduring questions of life, never answered entirely to the satisfaction of either side in a given dispute.

Judge Vinson's answer is the answer a earlier generations of Americans would have recognized as more fitting than the alternative. It would not have been for these generations a case of finding the purchase mandate evil, barbaric, anything like that. For many, it would have been a case of doubting whether, if Congress can tell you to buy a thing you don't want, any justification exists for calling ours a government of limited powers.

The Constitution was written and ratified by men who saw it as a means both of enabling and restricting government -- balancing the requirements of efficiency and freedom. On and on, the warfare has gone between those complementary yet competing concepts.

Since the New Deal, the general idea has been, yes, if Congress wants to do something (e.g., tell farmers what crops they may plant) for the supposed good of all, then such a plan must be good for all. Mustn't it?

It's a bit late in the day, you may think, to reopen that immense and vital question, but sometimes the rule is better late than never.
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