Tuesday, December 14, 2010

The Perfect Illustration

Yesterday's ruling from Judge Henry Hudson of Virginia, which invalidates the mandate of Obamacare in a carefully reasoned, forty-page opinion, provides the perfect illustration for my thesis that leftists do not care about constitutional rules, or limits; they simply do what they want to do at a given moment, and leave it to others to provide the justifications for what they have done.

Let us go back to the time when Obamacare was under consideration in Congress, before it passed. There occurred this interview between CNS News and Senator Patrick Leahy of Vermont, who as Chair of the Judiciary Committee oversees the public hearings on nominees to the Supreme Court:

CNSNews.com: "Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?"

Sen. Leahy: "We have plenty of authority. Are you saying there is no authority?"

CNSNews.com: "I’m asking--"

Sen. Leahy: "Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that."
Right, Senator Leahy -- no one who thinks as you do questions whether Congress has the authority to compel every American to purchase health insurance. But fortunately, that is why we have the federal courts.

As the linked article goes on to explain, the problem with the Obamacare mandate is precisely that it relies upon the general police powers of government, which under our federal system are the exclusive province of the several States. Congress has only those powers delegated to it under the Constitution, plus the subsidiary powers necessary to implement its delegated powers. But the power to force people to purchase a service or commodity does not fall within the ambit of any of Congress' delegated powers -- otherwise, as Senator Orrin Hatch (also a constitutional scholar) pointed out during the debate on Obamacare:
If we have the power simply to order Americans to buy certain products, why did we need a Cash-for-Clunkers program or the upcoming program providing rebates for purchasing energy appliances? We could simply require Americans to buy certain cars, dishwashers or refrigerators.
The argument, however, that Congress lacks the power to enact certain legislation is a non-starter for Democrats who think as Senator Leahy does: "No one questions our authority." Or, as Nancy Pelosi put it, even more succinctly, in response to another CNS News reporter's question:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?

Pelosi: “Are you serious? Are you serious?"

When the reporter assured her that his question was a serious one, Ms. Pelosi simply shook her head, then turned and took a question from a different reporter.

Pelosi and Leahy evince, in the incredulity with which they greet the legitimate questions they were asked, the same arrogance as does the current Presiding Bishop of the Episcopal Church (USA). The only difference is that there is a much smaller press corps, and far fewer opportunities, to ask hard questions -- such as "Where in ECUSA's Constitution is the exemption that allows you to go into a Diocese, unseat the Standing Committee, and install your own Standing Committee and provisional Bishop?" Or: "Where does Canon IV.9 say that you do not need to get permission to inhibit a bishop before you can ask the House to depose him?"

Well, there is one more difference -- and it is the decisive one. When Congress exceeds its powers, there are federal courts which can hold its acts unconstitutional. The Episcopal Church has no counterpart to the federal courts.

While some may deplore the lack of ecclesiastical courts with the power to define acts of its officials as unconstitutional, I do not. As I said in my previous post, in that way the Church can become exactly what God intended it to be -- for good or for ill. Its entire mission rests upon the spiritual integrity of those who lead it. When that integrity is held uppermost, the Church will grow and prosper. But when it is subordinated to personal ambition and power, the Church will spiral into a decline.

I leave it to the reader to surmise where the Church is now.


  1. Um, no. This judge is the third judge to rule on the constitutionality issue, and only the first one to agree with you. The President is a constitutional scholar--are you?

  2. What a brave comment, "Somebody" -- it really is nice to hear from someone with the courage of their convictions.

    This is a normative, not a descriptive, blog -- numbers don't count; only being in the right does. You haven't troubled to show us how the two earlier decisions were better reasoned than this one, which at least acknowledges the limits of the Commerce Clause.

    And thank you for the "constitutional scholar" joke -- the perfect term to describe another somebody who never published his own work while President of the Law Review, who managed to "lose" his senior honors thesis so no one can now read it, and who tried to disavow his opinion about the constitutionality of the D.C. gun control law when the Supreme Court proved him wrong. Oh, yes, and who tried -- scholar that he is -- to lecture the Supreme Court on constitutional law in his State of the Union address.

    As I say, thank you for the joke.

  3. Dear Mr. Haley,

    Somebody is an exemplar of the late President Reagan's comment:

    "…the trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so."

    Pax et bonum,
    Keith Töpfer

  4. Isn't the "mandate" simply a tax on those who cannot alternatively show that they are covered by health insurance? The government isn't "forcing" anyone to buy anything. They are imposing a tax on those who are, for lack of a better term, free riding on the country's health care infrastructure.

  5. Not really, Hoofin, although that is the argument the administration has advanced for its constitutionality. Regarded as a tax, the same rationale would let Congress impose a tax on all people who drive -- even if they never go further than from their homes to their churches, on the ground that there are a lot of injuries from automobile accidents, and people who drive should subsidize the cost of treating them.

    In other words, it's an open door to sustain any kind of tax you want, and we would no longer have a government of delegated, limited powers.

  6. Brothers, I "hide" behind this moniker for professional reasons. I prefer to use my name in associate with my professional activities only. Call me Mr. Hat if you wish. If numbers and descriptions don't count then certainly names are not relevant, either.

    Similarly, Keith, pejorative comments such as yours are descriptive? At least Obama writes most of his own speeches; I doubt Reagan wrote that. But what do I know.

    I didn't identify my pigeonhole, but it would seem one is selected for me because I questioned the 'right' opinion. I guess you are now spared from having to reason through anything at all since I can be dismissed with this label alone, regardless of how well it applies.

    For what it's worth, I'm not happy with "Obamacare", either--in fact, I'm against all insurance for routine care, favoring coverage only for catastrophic and chronic events. But that's too practical.

    I'm disappointed at the hostile and petty reception I have received here. As a fellow Anglican believer also "trapped" in TEC, I expected better.