Daily Archives: December 11, 2009

I wonder, is this issue going to get traction? Cato’s Robert Levy and Michael Cannon argue that the health insurance mandate is unconstitutional. It does seem to cross a commerce-clause line: yet another line, in fact, since so many have been crossed already. The question is whether the government can force you to buy something you don’t want. You have to buy car insurance, you say? Well, not really, since nobody forces you to buy a car (though try living in the US without one). The health insurance mandate forces you to buy a service, and all you have to do to fall under its power is exist.

The individual mandate would extend the dominion of the federal government to virtually all manner of human conduct – including the non-conduct of not buying health insurance – by establishing a federal police power that is authorized nowhere in the Constitution. Democrats will have legislated a new quasi-crime, and perhaps the sole offense in our history that can be committed only by people of a certain income, since those below the poverty line would be exempt from the mandate.

Congress’ attempt to punish a non-act that harms no one is an intolerable affront to the Constitution, liberty, and personal autonomy. That shameful fact cannot be altered by calling it health-care reform.

I find Stuart Taylor’s take more to my taste, though more tentative than I might have expected. He concedes that the constitutionality of the mandate is highly questionable; he agrees with Levy and Cannon that the Supreme Court will uphold it; but unlike them he thinks that upholding it is the right (meaning pragmatic) thing to do. It’s a matter of  “the justices’ undoubted [and proper, in Stuart's view] sensitivity to public opinion and political considerations”.

It’s true that the proposed mandate, like much else that Congress has done since the New Deal, would extend federal powers far beyond anything envisioned by the Framers. The commerce clause, in particular, was not intended to allow Congress to regulate activities that were neither interstate nor commercial.

But the need to govern an ever-more-interconnected nation, in which once-local activities such as health care have become critical components of the national economy, has spawned a long line of precedents expanding the commerce power, especially since the justices began upholding New Deal programs in 1937.

On this and other issues, the Court must often choose whether to be faithful to a literal interpretation of the Constitution’s original meaning or to the hundreds of precedents that — sometimes for good policy reasons, sometimes not — have stretched or departed from it.

It’s a shame that the strongest precedents for upholding the mandate’s constitutionality include, in Stuart’s view, a decision I very much object to: a 2005 ruling that Congress can make it a federal crime for Californians to grow marijuana for their personal, medical use, even though California law allows it. But if the commerce clause can stretch to that, it can stretch to anything.

The Senate health care deal may unravel. Carrie Budoff Brown, Politico. Perhaps I spoke too soon.

Credulity and Copenhagen. Philip Levy, AEI

NYC prepares for the 9/11 trials. Al Baker, NYT

James Kwak on Arnold Kling on the financial crisis. Baseline Scenario.

An American triumph at Oslo. Kathleen Parker, Washington Post. More praise for Obama’s Nobel speech. This one really rubs the prize committee’s nose in it.

There is much about Obama’s administration to criticize. But at certain moments, the president articulates our problems in ways that elevate us beyond our pettier differences. His Nobel Prize may have been all the things critics have listed, but Obama’s response was a triumphant expression of American values and character.

That hurts. That really hurts.

David Ignatius’s commentary always repays careful reading. This column on what he regards as two of Obama’s key insights is food for thought.

The first is that Obama is not unduly concerned about his declining popularity.

“If I were basing my decisions on polls,” [Obama] said, “then the banking system might have collapsed, and we probably wouldn’t have GM or Chrysler, and it’s not clear that the economy would be growing right now.” Some presidents have an almost compulsive need to be popular (think Bill Clinton). This one is less needy, which is an advantage for him and the country.

Yes, he is less needy than Bill Clinton, and that is good. Great leaders have to shape rather than be shaped by the prevailing fickle mood. But one wonders whether Obama is carrying this to an extreme. For instance, if I were him, I’d be very uncomfortable signing a health care bill that is both a mess and disliked by most voters. I might do it; in fact I would do it, because getting close to guaranteed coverage trumps those considerations. But I’d be uncomfortable, and I’d feel that my failure to bring the country along was serious.

The second idea:

I asked Obama whether he would back reconciliation with the Taliban. He responded: “We are supportive of the Afghan government’s efforts to reintegrate those elements of the Taliban that … have abandoned violence and are willing to engage in the political process.”… The Taliban gave an interesting response a few days later on its Web site, alemarah.info. It said the group “has no agenda of meddling in the internal affairs of other countries and is ready to give legal guarantee if the foreign forces withdraw from Afghanistan.” Now, what did that mean? Was it a hint the Taliban might break with al-Qaeda? I don’t know, but I hope the White House is asking Saudi Arabia and Pakistan to find out.

This is difficult. Deciding that the Taliban does not have to be destroyed is one thing. Contemplating its return to power is another. Whatever the Taliban does to our friends and allies in Afghanistan will be OK with us, as long as they deny sanctuary to Al-Qaeda? Maybe Obama thinks “engaging in the political process” precludes a repressive religious tyranny. I expect the Taliban has other ideas.

A very interesting column. But I have one last objection, to this word of praise for the president.

Here’s the passage that suggested his broader vision: “Part of the goal of my presidency is to take the threat of terrorism seriously, but expand our notions of security so that it includes improving our science and technology, making sure our schools work, getting serious about clean energy, fixing our health care system, stabilizing our deficit and our debt.”

This may sound like boilerplate, but it’s actually a pretty good manifesto for governing.

David, it’s worse than boilerplate, and no manifesto at all. Does fixing the health care system require a broadening of the concept of national security–a broadening to the point of meaninglessness–before the case can be made? I don’t think so.

Clive Crook’s blog

This blog is no longer updated but it remains open as an archive.

I have been the FT's Washington columnist since April 2007. I moved from Britain to the US in 2005 to write for the Atlantic Monthly and the National Journal after 20 years working at the Economist, most recently as deputy editor. I write mainly about the intersection of politics and economics.

Clive Crook’s blog: A guide

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