Clive Crook has an interesting post at the Atlantic today arguingthat Obamacare is a “milder dispensation” of government power thansingle-payer. And if single-payer is Constitutional, then stopping theObamacare mandate is really no victory worth having. In other words, thegovernment can already tax you and send you a box of broccoli, so why getworked up about defeating the broccoli mandate?It’s an interesting question with an equally interesting answer.
Let’s start by noting that Clive Crook’s view of theConstitution is a bit different than that of most conservatives. In fact, ifyou really boil it down, Crook’s whole argument is that we’ve already rolledover so much of the Constitution, it’s silly to pretend original intentmatters anymore. We should just abandon the pretense:
The world has changed, and what we expect of the government haschanged. The Constitution had to change as well, and that could be doneeither by amending it explicitly or having the Court draw on all itsreserves of ingenuity and rewrite it judgement by judgement. In America, theConstitution is a quasi-religious document. Its constancy is an inviolablenational myth. Changing it therefore falls to the Court and must be done bystealth, with a certain suspension of disbelief on the part of thecitizenry. The big disadvantage of amendment by jurisprudence is that ittakes an unavoidably political task out of politics and gives it tounelected judges. Obviously, that’s also its big advantage.
that people know, on some level, that what they are being shown or told isnot true. So, for instance, “Spiderman” is a fun film even though we all knowpeople don’t stick to walls in the real world. We’re willing to suspenddisbelief for the sake of a fun ride.But that’s not the situation with most Americans vis`a vis the courts.Recall the confirmation of Sonia Sotomayor. Her nomination was dogged by avideo from 2005 in which she was caught saying “court ofappeals is where policy is made…and I know this is on tape and I shouldnever say that because we don’t make law, I know…” Oops!
Weeks later, Sotomayor went through her confirmation hearing soundinglike a strict constructionist somewhere to the right of Justice Scalia. Sheaffirmed that the court does not make policy, only Congress can do that. Inother words, she covered her tracks to get past the Senate and, moreimportantly, the public. The public, for the most part, wasn’t aware theywere being taken for a ride by progressives with an agenda to rewrite theConstitution. On the contrary, they were assured in somber tones that noone, certainly not Sonia Sotomayor, would ever contemplate such a thing.That’s not suspension of disbelief, that’s dissembling.
The same is true of Obamacare. There’s a reason Democrats embraced the ideasof Jacob Hacker when they set about tackling health reform. It was a way toget where they really wanted to go–single-payer and the end of privateinsurance–while pretending they were encouraging “choice andcompetition.” It was, as Washington Post health care expert Ezra Klein putit, a “sneakystrategy” to win a debate liberals would lose if they were honest abouttheir goals.
So, yes, Obamacare is a “milder dispensation.” That was the whole point. Itwas created to appear mild in order to help Democrats conceal their realgoals from the public. Had progressives tried to use the tax power and pushsingle-payer, they would have avoided all the Constitutional problems. Theyalso would have failed immediately with a public that was dead set againstsuch a scheme. Even using the deceptive ruse of Obamacare, they had theirheads handed to them in the 2010 elections.
So let’s stipulate that Democrats are only in this predicament because ofthe particular path to reform they chose. But let’s also acknowledge that anhonest argument, i.e. for British-style single-payer, would never havegotten this far in the first place. To return to everyone’s favoriteanalogy, a massive new broccoli tax may pass Constitutional muster, but goodluck selling that to Americans staring at $15 trillion in debt.The bottom line is this: Democrats chose to face the courts with theirsneaky scheme rather than face the people with the truth. We’re fortunatethat the nation’s founders were clever enough to make such end-runs aroundthe will of the people very difficult to pull off. A win in the courts vs.Obamacare is still a win for the people vs. dishonest, partisan scheming.