Republicans Say Everything the Dems Pass Is Unconstitutional -- Even Policies They've Championed for Decades

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.

In 1792, none other than George Washington signed the Uniform Militia Act, a law requiring every white male citizen to purchase a whole basket of items – “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein” – from private companies. Bradley Latino at Seton Hall law school's Health Reform Watch added that “this was no small thing.”

Although anywhere from 40 to 79% of American households owned a firearm of some kind, the Militia Act specifically required a military-grade musket.  That particular kind of gun was useful for traditional, line-up-and-shoot 18th-century warfare, but clumsy and inaccurate compared to the single-barrel shotguns and rifles Americans were using to hunt game. A new musket, alone, could cost anywhere from $250 to $500 in today’s money.  Some congressmen estimated it would cost £20 to completely outfit a man for militia service -- about $2,000 today.

Some on the Right have argued that this history is irrelevant as the law was passed under the auspices of the Constitution's militia clauses, not the Commerce Clause. That's true, but doesn't change the fact that it disproves the claim that Congress has never compelled citizens to purchase goods or services from private firms – that's patently false, regardless of how the measures differed in their details.

And despite the fact that there were a number of legislators serving in that Congress who had signed the Constitution five years earlier, “not one of militia reform’s many opponents thought to argue the mandate was a government taking of property for public use. Nor did anyone argue it to be contrary to States’ rights under the Tenth Amendment.” Those who opposed the bill simply argued that it would put too great a burden on the poor.

Of course, mandating that citizens buy a gun is different than requiring them to purchase health insurance. But as Rick Ungar, an attorney and writer, pointed out, Congress did in fact pass a mandate requiring health insurance...back in 1798.

The Act for Sick and Disabled Seamen created a government-operated hospital system – socialized medicine! – and mandated that all privately employed sailors purchase health insurance in order to sail.

It's not an exact parallel. Nobody was forced to become a merchant seaman. But as Ungar noted, “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.”

The Act also required sea captains to withhold 1 percent of sailors' earnings to finance the program rather then mandate that they purchase a policy themselves – it was the first payroll tax. But as Ezra Klein noted in the Washington Post, “if conservatives really do prefer a system of payroll taxes that purchase you public insurance to the private system envisioned in the Affordable Care Act, I'm sure there are a lot of liberals who would vote for a bill that repealed the Affordable Care Act and replaced it with Medicare-for-all.”

It's an important point – the liberal approach to universal health care is not only simpler and far more cost-effective, but unlike the Right's individual mandate, it also falls unambiguously within the federal government's enumerated powers.

Health care is also, in the words of the Congressional Research Service, “a unique market” in that one cannot opt out of it even if one wishes to do so. That's because, by law, we don't allow people to simply die in the streets, untreated. The uninsured without the means to pay nonetheless get (very costly) care in emergency rooms, and the rest of us pick up the tab.

And here, again, it's worth noting 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.” The bill was signed into law by none other than John Adams, considered to be among the most influential of the “Founding Fathers.” Thomas Jefferson was the president of the Senate at the time, and Jonathan Dayton, the youngest man to sign the Constitution, served as Speaker of the House.

As the current legislation stands, even the American Enterprise Institute concedes that “the majority of constitutional experts are betting that the courts will uphold the mandate” – although they're not happy about it. And that's because the other Constitutional arguments against the reforms are just as dubious. Conservatives have come to use the Constitution as a crutch, avoiding debates on the merits of various proposals by asserting, with a broad wave of the hand, that whatever the policy in question may be, it's all illegitimate.

The constitutionality of the health-care mandate will ultimately be decided by an activist majority on the Supreme Court. Nobody can predict how it will rule, but the Constitution gives the Congress power to “to lay and collect Taxes, Duties, Imposts and Excises ... and provide for the common Defense and general Welfare of the United States,” a power the Congressional Research Service characterizes as ”one of the broadest powers in the Constitution,” and one that forms “the basis of government health programs in the Social Security Act, including Medicare, Medicaid, and the State Children’s Health Insurance Program.”

The Supreme Court has interpreted the Commerce Clause as giving the government the authority to regulate not only interstate commercial transactions in a limited sense, but also “those activities having a substantial relation to interstate commerce.” (Our health-care system is the costliest in the world, and eats up about 18 percent of our economic output, so it's hard to see how one can argue that it doesn't have a “substantial relation” to our national economy.)

Then there's the common conservative argument that the Commerce Clause only covers economic activity, but not inactivity – a claim that is also factually incorrect, but was nonetheless accepted by Henry Hudson, the federal judge who ruled against the government in the Virginia suit. But even if it were true, it's hard to see the relevance of the argument given the Constitution's Necessary and Proper clause, which authorizes the government to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

So, to recap: Congress is expressly authorized to raise taxes and spend public funds to further the “general welfare” of the nation; it can regulate any area that has a “substantial relation” to interstate commerce, and it can pass any law that is “necessary and proper” to further those enumerated powers.

On its face, there's nothing in the Constitution constraining the government from enacting its health-care scheme. But the heart of conservative rhetoric these days is that any legislation passed by Democrats is illegitimate and defies the will of the Founders, as channeled by the mystics who lead the Tea Party movement.

That's apparently the case even when those policies are among those they've championed for years based on their own ideological preferences.


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