Republicans Say Everything the Dems Pass Is Unconstitutional -- Even Policies They've Championed for Decades
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That Republicans are relentlessly attacking the constitutionality of what had long been one of their signature ideas for reforming the health-care system -- the individual mandate requiring people to buy insurance or pay a penalty – is a testament to just how far down the rabbit-hole our discourse has gone.
Late last year, when a federal judge ruled against the mandate ( two other courts disagreed, and the Supreme Court will end up deciding the question), Senator Orrin Hatch, R-Utah, rejoiced. "Today is a great day for liberty," he said. "Congress must obey the Constitution rather than make it up as we go along.” It was an odd testament to freedom, given that Hatch himself co-sponsored a health-care reform bill built around an individual mandate in the late 1990s.
Journalist Steve Benen noted that while “the record here may be inconvenient for the right ... it's also unambiguous: the mandate Republicans currently hate was their idea.”
It was championed by the Heritage Foundation... Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s. For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many other ... notable GOP officials.
According to NPR, the mandate was the Right's response to progressive proposals to establish a single-payer system. Mark Pauly, the conservative economist widely credited with the idea, explained that "a group of economists and health policy people, market-oriented, sat down and said, 'Let's see if we can come up with a health reform proposal that would preserve a role for markets but would also achieve universal coverage.'"
That was then, this is now. Since it was a Democratic Congress that enacted the mandate, this conservative idea for creating a business-friendly model of universal health care has become something profoundly un-American, according to many of those very same Republicans who championed it . (Asked about the GOP's retreat from the individual mandate it had long promoted, Pauly said, "That's not something that makes me particularly happy.")
And as is generally the case in these heady days of Tea Party conservatism, it's not just that the individual mandate is bad – it's also “un-Constitutional” (just like child labor laws, federal disaster assistance, food safety standards, etc.). As Gary Epps, a legal scholar at the University of Baltimore, put it, "Conservative lawmakers increasingly claim that the 'original intent' of the Constitution's framers and the views of the right wing of the Republican Party are one and the same."
A brief filed in support of Virginia's challenge to the Affordable Care Act by the Landmark Legal Foundation – headed by noted wing-nut radio host Mark Levin, who believes that the Tea Partiers have been "tormented and abused far more than the colonists were by the King of England" – laid out the argument, calling the erstwhile Republican approach to universal health care “evidence of congressional power run amok.”
Congress can tax interstate commerce, it can regulate interstate commerce, it can even prohibit certain types of interstate commerce, but it cannot compel an individual to enter into a legally binding private contract against the individual’s will and interests. There is nothing in the history of this nation, let alone the history of the Constitution ... that endorses such a radical departure from precedent, law, and logic.
Like most of the Right's views of the Constitution – and the Founders' intent – this is entirely wrong; it's historical revisionism driven by ideology.