Tuesday, December 14, 2010

One Hell Of An Endgame Scenario

Via Steve M., Mojo's Nick Baumann spots the endgame of the Republican health care repeal kabuki theater:  wrecking the Commerce Clause and rolling back, oh, the last century or so of social and labor legislation.  If Judge Henry Hudson's interpretation of the Commerce Clause is correct, then every federal regulation in the book is pretty much null and void.

Most legal scholars agree with the Obama administration on this. They believe the commerce clause allows Congress to regulate economic decisions, not just economic activity. Hudson, as you know by now, doesn't buy that argument. Hudson believes the Constitution provides for a federal government far more constrained in its abilities to regulate the economy than any state government. In the state of Virginia (ahem), for example, drivers who refuse to purchase auto insurance have to pay the state $500 a year. In making this claim, Hudson has "rewritten the Commerce Clause," Tim Jost, a professor at Washington and Lee University law school, told reporters on Monday.

Drastically limiting the scope of the Constitution's commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise. Almost every meaningful action the federal government takes with regard to the economy rests on the commerce clause. In the past, the Supreme Court has read that clause to be incredibly constrained. During the Lochner era (1897-1937), the court routinely struck down federal laws regulating working hours, child labor, and minimum wages as inappropriate interventions in individuals' "right of contract."

In that time, individuals' "rights" to do whatever they wanted in the market—even if a 12-year-old "agreeing" to work 80 hour weeks for next-to-nothing made it more likely that other children would have to do the same—were thought to outweigh the state's interest (and, you know, the moral imperative) in not having children being worked to death in textile mills.

Similarly, in Hudson's decision, an individual's "right" to decline to purchase health insurance—even though, by doing so, she is creating a future burden on the state and making it less likely that the state will be able to pay for health care for others—is more important than the state's interest (and the moral interest) in trying to make sure that people don't die because they don't have enough money to pay for health care. The individual's economic rights trump all else—even the right (which, to be fair, many conservatives don't believe exists) of other citizens to life: the right to not die because they don't have health insurance.

There's more to be said about the validity of Hudson's constitutional arguments. Over at the Incidental Economist, Ian Crosby explains why even if you buy Hudson's argument that refusing to purchase insurance is not "activity," the ruling still doesn't hold water. But it's important to remember that there are real people's lives at stake here, and more fundamental things than arguments over constitutional legalese are at stake. Anthony Kennedy and Antonin Scalia are smart legal minds. They can probably make a fairly convincing constitutional argument for anything they decide—and as Bush v. Gore showed, they don't even have to do that.

Ultimately, the nine members of the Supreme Court are going to be making a political decision about how much power they believe the government should have over the economic activities of ordinary Americans. Should the feds be able to require people to buy insurance for health care, a universally used good that society is expected to (and does) provide? Or does the Congress of the United States have less power to regulate health care than the Legislature of the Commonwealth of Virginia has to regulate who pays to fix your Jetta after a fender-bender?

Nice plan, huh?  Nobody of course would dare call what Hudson's done "judicial activism".  But in the end the Supreme Court will decide what it wants to, and it could very well eliminate just about every standing federal regulation on the book governing just about every industry out there:  the ultimate and permanent deregulation of the country's businesses from any and all oversight.

It would be chaos.  States could simply do what they wanted to, and the federal government would basically have no power over things.  Social Security, Medicare, Medicaid, minimum wage act, fair housing act, equal employment opportunity act, civil rights act, all of those would be toast overnight if there were no state laws on those.  Kiss abortion and education laws goodbye too.

Red states could then be as backward, bigoted, and ignorant as they wanted to be.  Don't like it?  Move to another state where somebody gives a damn about evolution or civil rights or women.

Pretty scary endgame if you ask me.  Too much "end", not enough "game".  But there's a reason why Eric Cantor and the Teabaggers want to get this to the Supreme Court ASAP.  Steve has this cold, I think.

The gutting of those is what Republicans are going to be trying to accomplish once they have the White House as well as complete control of Congress -- but that's not going to be a popular fight once they're actually engaged in it. Much easier to have the Court level the entire 20th-century progressive edifice with one wrecking ball, and let Republicans in Congress be the blameless cleanup crew clearing away what's left of the wreckage.

Wasn't us.  Supreme Court did it.  We're just following the Constitution when we annihilate the federal safety net.  And this is totally not activist judges legislating from the bench.  Nope.

If you can't secede from the Union, neuter the Union instead.

10 comments:

SteveAR said...

Nice bit of fear-mongering on your part. Of course, you're wrong on everything.

It would be chaos. States could simply do what they wanted to, and the federal government would basically have no power over things.

It wouldn't be chaos. The Constitution was written to give the people and the states the power over the federal government. It was statist politicians and activist judges over the last 70+ years that have allowed the federal government to usurp power from the people and the states. This country wasn't founded on the belief that a national government should control the lives of the people through centralized 5-year plans. We've seen governments that run these systems murder millions of their own people to implement those plans.

Red states could then be as backward, bigoted, and ignorant as they wanted to be. Don't like it? Move to another state where somebody gives a damn about evolution or civil rights or women.

So? Blue states could then be atheistic, crime-ridden, nanny-state, freeloading free-for-alls by letting the inmates run their blue state asylums. And you could move to one of them if you prefer.

SteveAR said...

We're just following the Constitution when we annihilate the federal safety net.

There's a phrase attributed to Ben Franklin that liberals have loved to use in regards to the U.S. fighting the War on Terror:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

Maybe liberals should re-read this quote to understand what they are doing to liberty by continuing to advocate for the federal social safety net instead of making sure people are provided with the opportunity to help themselves and their families. Worse, the temporary safety liberals advocate has been around for decades, so that had made their safety net worse for everybody.

SteveAR said...

Guys like Bauman really have to stop using the car insurance analogy:

Or does the Congress of the United States have less power to regulate health care than the Legislature of the Commonwealth of Virginia has to regulate who pays to fix your Jetta after a fender-bender?

Does the guy even own or drive a car? Does he even know why people have car insurance? (Hint: the answer has nothing to do with fixing a Jetta after a fender-bender.) The answer to his question is yes. Because that is what is in the Constitution (10th Amendment).

Zandar said...

"This country wasn't founded on the belief that a national government should control the lives of the people through centralized 5-year plans. We've seen governments that run these systems murder millions of their own people to implement those plans."

Totally not fearmongering on your part, either.

"Maybe liberals should re-read this quote to understand what they are doing to liberty by continuing to advocate for the federal social safety net instead of making sure people are provided with the opportunity to help themselves and their families."

Has it occurred to you that the two are not mutually exclusive?

"Because that is what is in the Constitution (10th Amendment)."

Which is exactly my point: 50 sets of state laws without a federal guiding hand is chaos.

SteveAR said...

Totally not fearmongering on your part, either.

I'll admit mine if you admit yours.

Has it occurred to you that the two are not mutually exclusive?

Huh? If you mean we can retain the safety net and liberty, then you are wrong. The mandate is proof of that. So is Social Security, Medicare, and Medicaid; they aren't affordable anymore and are badly mismanaged ($235 billion in improper payments over the last two years is proof of that).

Which is exactly my point: 50 sets of state laws without a federal guiding hand is chaos.

A federal guiding hand is one thing. Having the federal government usurp the power of the people and the states, which is what nearly 100 years of liberalism and progressivism has done (going back to the 16th Amendment), is not what the Framers had in mind. They also wanted people to remain free with individual rights protected by the government, not pieces of commerce to be controlled by the government.

Steve M. said...

What Little Stevie calls "tyranny" is what used to be called "the American Century" and is regarded by most people as the high-water mark for average citizens in this country. Big government? The World War II generation built their lives on Big Government. And far from feeling tyrannized, they felt they got a great deal.

Zandar said...

They did indeed.

And now those are the same people who want to take it away from my generation.

Nice folks.

IronBrow said...

It's the close-the-door-behind-me libertarian that is recently empowered. They CAN'T STAND to see people getting benefits for "nothing", that is totally unacceptable to them. Stupid fucks don't realize that we ALL rise on the tide that lifts the least of us.

Tlachtga said...

Why rise on the tide if you can stand on their necks?

SteveAR said...

Mr. M, how interesting to see you. Still have no job or any understanding of work, business, or pretty much anything else?

...what used to be called "the American Century" and is regarded by most people as the high-water mark for average citizens in this country.

You liberals really have to get your stories straight. For you, this was the time of the big, bad government trying to ferret out Communists that were subverting the nation (which they were); liberals made a big stink about it.

This was also the time when African-Americans were still treated as second class citizens by racist liberals (*cough* Hugo Black *cough*), all Democrats, who were still using Plessy as precedent.

It was a time when you liberals were warning about the coming American "theocracy" with all this mentioning of God and stuff.

Homosexuals were really in the closet in those days.

According to you all, it was a miserable time and America was an awful place. Now you're telling me that time was rosy and grand? Like I said, get your stories straight.

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