David Frum: Wrong and insulting on the constitutionality of Obamacare

Hot Air recently headlined a condescending diatribe written by David Frum entitled,  Health reform: Unwise, not unconstitutional.  It begins with this premise:

Is the Obama-Reid health reform plan unconstitutional?



The answer to that should be obvious: the Reid-Obama plan may be unwise, unsound, and unaffordable ... but it is unquestionably constitutional.

I was amazed and angered at the weak arguments put forth by this self-described "conservative."  Today Drew M at Ace of Spades writes a skewering rebuttal that made me smile. Here's a snippet:

Via Hot Air's Headlines, David Frum provides me with a wonderful belated Christmas present...the chance to beat on him.

Our man Frum is back and arguing that objections to ObamaCare (specifically the individual mandate) on constitutional grounds shows what Neanderthals conservatives are. In doing so he demonstrates that he hasn't actually read the Constitution lately or just doesn't understand it. I'm not talking about interpretive differences upon which reasonable people disagree (there are those too) but one big glaring factual error.


Let's see if you can spot it!

DeMint's and Ensign's argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do. Since (for example) the Constitution speaks only of a Supreme Court, Congress has no power to create lower federal courts. Since the Constitution does not mention a national bank, Congress may not charter banks. 

No lower federal courts? How could the founders have been so stupid? Did those idiots think that we'd only need one court? No wonder Frum doesn't see any reason to pay attention to their outdated design. I mean they didn't even provide for lower, one might say 'inferior', courts!


Oh wait, they did. Yep, right there next to that Supreme Court Frum knows so much about. Hell, they even provided for the staffing of those non-existnat courts.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Okay, enough of the gotcha stuff. Let's look at Frum's other arguments.

Read the whole thing.

A uniquely American idea

Dr. Walter Williams takes up the abandonment of our constitution in his recent column for townhall.com. As I have argued here,  here, and here, the U.S. Constitution, once the most revered government framework on earth, has become an afterthought in the democrat-controlled Congress (when it is thought about at all).

Most conservatives believe as I do, that America is an exceptional nation of exceptional people.  On occasion, one may even hear the comment that this trait or that trait is "in our DNA," as Americans.  Make no mistake.  That is not the case. Dr. Williams explains:

We Americans, as human beings, are no different from any other people, including Germans, Russians, Chinese, Africans and other people who have produced tyrannical regimes such as those of Hitler, Stalin, Mao and Idi Amin. As such we are just as capable of committing acts of gross evil that have been a part of mankind throughout his history. We’ve not been a perfect nation but we’ve never approached the level of hideousness seen in other nations. That’s despite the fact that our population consists of people who have for centuries been trying to slaughter one another in their home countries, whether it’s between the French and Germans, English and Irish, Japanese and Chinese, or Palestinians and Jews, Igbos and the Hausa of Nigeria. Thrown into the American mosaic are religions that have been in conflict for centuries such as Catholic and Protestant, and Christian and Muslim. The question is: Why is the United States an exception and will it remain so?

 He goes on:

At the heart of the American idea is the deep distrust and suspicion the founders of our nation had for government, distrust and suspicion not shared as much by today’s Americans. Some of the founders’ distrust is seen in our Constitution’s language such as Congress shall not: abridge, infringe, deny, disparage, violate and deny. If the founders did not believe Congress would abuse our God-given rights, they would not have provided those protections.

The emphasis on those words is mine.  They are certainly telling reminders of our forefathers intent. They harbored a basic distrust of government and intended to place enduring restraints on its power.

If you will allow me a metaphor, the U.S. Constitution is the very firewall that separates our great nation from dictatorship, slavery and economic ruin.  It's time to remind our representatives that they are not above it, but bound by oath to uphold it.  If they will not, it is our obligation to remove them in favor of others who will.

Are health care insurance mandates constitutional?

Absent from the debate about health care reform has been serious consideration of the questionable constitutional authority of the Congess to require American citizens to purchase health care insurance. In August, David Rivkin and Lee Casey, made a strong case in the Washington Post, that these mandates are, in fact, illegal.  First, framing the question,

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

Then the bottom line answer:

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

For their complete legal arguments, read the rest of the article.

Last week Ken Klukowski, a fellow and senior legal analyst with the American Civil Rights Union, agreed.  From Politico:

But, as other lawyers have correctly noted, there is no constitutional basis for the individual mandate. People who decline coverage are not receiving federal money, so that mandate can’t fall under the spending part of the Tax and Spending Clause.

It also cannot be a tax. The federal government can levy only certain kinds of taxes. Article I of the Constitution authorizes excise and capitation taxes, and the 16th Amendment created the income tax.

It can’t be an excise tax because that’s a surcharge on a purchase, and here people are not buying anything. It can’t be a capitation (or “direct”) tax because that is a tax on every person in a state and must be equal for every person in the state; this would be a levy that some people would pay and others would not. And it can’t be an income tax because that must be based on personal income, not purchase decisions.

All that’s left is the Commerce Clause. And the people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce. That, in fact, is the government’s problem with them: Those people refuse to take the money or play the game.

Despite this scholarly and credible legal opposition, Nancy Pelosi and Chris Dodd recently dismissed questions about constitutional authority as not serious.  From Dodd (via CNS news)

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."

And Speaker Pelosi, also from  CNS News, via HotAir:

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?”

CNSNews.com: “Yes, yes I am.”

Madame speaker, Senator Dodd, in the history of our republic, this is as serious as it gets.