LITTLE ROCK — If there is a single event that best explains why Nancy Pelosi is about to become the former speaker of the House, it occurred on Oct. 23, 2009.
On that date, in the wake of the forced, highly unpopular passage of Obamacare, she was asked at a news conference whether the individual health care mandate might encounter some constitutional difficulties.
Her wide-eyed, incredulous response-“Are you serious? Are you serious?”-captured in one fell swoop all the condescension, arrogance and ideological blindness for which her calamitous speakership will be forever remembered.
Reduced to its dismal essence, Pelosi and the Democrats are likely to suffer one of history’s most dramatic electoral rebukes because they couldn’t grasp the concept of limits on federal governmental power. For Pelosi, questions of constitutionality are not serious because the Constitution itself is an archaic irrelevance. From her perspective, only nut cases object to the idea of allowing the federal government to do whatever it wishes.
Few things better illuminate the abject betray of liberalism by its putative followers than this lack of concern with the most important issue in the historical development of liberalism, how to limit governmental power consistent with ordered liberty. It is one thing to construct a constitutional argument on behalf of Obamacare, another altogether to pretend that you shouldn’t have to.
Thankfully, not everyone is as unconcerned with the rule of law as our House speaker. Within days of the passage of Obamacare, 20 state attorneys general filed legal challenges to the individual mandate. Last week, U.S. District Judge Roger Vinson issued a 65-page ruling allowing such suits to stand, a decision which means that Obamacare will likely reach the Supreme Court.
Vinson noted in his ruling that it “wasn’t even a close call” as to whether there were serious constitutional issues raised by the individual mandate. Going farther, he noted that “while the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional, there is perhaps a presumption that it is.”
Contrary to Pelosi’s casual dismissal of the notion, there is a real possibility that the individual mandate crossed the line of acceptable congressional authority.
Constitutionality is, of course, the crux of the matter here. If the Obama administration’s legal claim that the individual mandate falls within the legitimate powers allocated to the federal government under the commerce clause holds, then a precedent will have been established that dramatically expands those powers in a largely open-ended fashion.
Far from simply regulating commerce, for the first time Congress will be granted the power to force Americans, under criminal penalty,to engage in such commerce.
If Americans can be required to purchase a given product under commerce clause auspices, then it becomes unclear what Congress doesn’t have the power to do. If requiring Americans to purchase health care for purposes of reforming the nation’s health care system is deemed to be within the purview of congressional authority, then why would it be unconstitutional for a future Congress, consistent with concern for the “general welfare,” to require all Americans to purchase a General Motors vehicle to save the automobile industry or to buy stocks to prevent a market crash on Wall Street?
The drawing of lines as to what powers are and aren’t permitted to the federal government is the most crucial task of constitutional interpretation because at the heart of liberal democracy is the idea that freedom requires limitations on governmental power.Implicit in that task is the assumption that the federal government should be allowed to do some things but not others, and that clear rationales with reference to specific constitutional clauses must be provided to distinguish those cases.
If the powers of the federal government were meant to be unlimited, then there would be no need for a Constitution to constrain them. That Pelosi never understood this or even made any attempt to goes a long way toward explaining what will happen to her and her party in nine days.
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Free-lance columnist Bradley R. Gitz lives and teaches in Batesville.
Editorial, Pages 89 on 10/24/2010