Lying To Make Friends

In addition to campaigning on a pledge to repeal health care form, the other track opponents of the new law are taking is to challenge its constitutionality, particularly the constitutionality of the individual mandate.  The argument is that the individual mandate exceeds the federal government’s authority to tax and to regulate interstate commerce, and if the courts don’t strike down the law then Congress will have unfettered power to make us wear certain types of hats or buy certain cars.

The first part of this argument ignores decades of Supreme Court precedent giving an expansive interpretation to the Commerce Clause.  The second part is only a concern if you accept the Glenn Beck view that our elected representatives are pawns of an insidious progressive movement hell bent on taking over every aspect of our lives, rather than sensible, self-interested people trying to balance doing the right thing for the country with the desire to get re-elected.  Worrying about extreme implications of allowing the individual mandate to stand misses that Congress could pass all kinds of ridiculous legislation under its clearly enumerated powers.  For instance, Congress has the power to levy income taxes, and could pass a nationwide income tax of 90% on all brackets.  Combining the fears of health care opponents cited above, under the power to regulate interstate commerce, Congress could pass a law that no one call sell an automobile to a person not wearing a hat.  We’re fine with Congress having those powers in theory, because we have enough faith in republican democracy that we don’t expect our leaders to take actions that both don’t serve the public good and will harm their prospects of being re-elected.

The slippery slope argument ignores two checks that will remain against Congress passing ridiculous laws even if the individual mandate is found to be constitutional.  One is other constitutional doctrines, such as substantive due process, which the Supreme Court could use to strike down any law that was truly irrational or invidious.  The other is the democratic process.  Opponents of health care reform are outraged that Congress passed the bill even though polls showed a majority of the country opposed to it.  The worry is that we are now in a “tyranny of the majority,” where whoever controls Congress runs roughshod over the public will.  Slippery slope fears would be more justified if that characterization were accurate, but it ignores that Democrats won the last two election cycles campaigning largely on a promise to reform our health care system, and polls have continued to show that the public trusts Democrats more on the issue of health care than Republicans even as it started turning against the President’s plan.  While part of Congressional Democrats’ motivation was to do the right thing whatever the cost, the party was also partly motivated by the knowledge that opposition to the health care bill has been based largely on misinformation and a belief that between now and November Democratic candidates will be able to explain the new law to the public and turn it from an electoral liability to a benefit.  Whether they are right or wrong in that calculation, that is exactly what republican democracy is all about.

-AR