Tuesday, December 13, 2011

Obamacare: Leviathan Rising

Obamacare has handed the Supreme Court a golden opportunity.

Did our Founding Fathers create an all-powerful federal government that can wield unlimited authority over its citizens? Can it bludgeon the 50 sovereign state governments into submission on fiscal and other matters? Specifically, can Uncle Sam regulate not just our everyday activities, but our everyday inactivity as well? Moreover, can it set in motion fiscal forces that, over time, will effectively subjugate the states to the federal Leviathan? What, if any, limit is there with respect to federal authority over individuals and the states?

Only rarely does the Supreme Court accept a case that could define the constitutional limits of the federal government. Its decision to hear the many constitutional challenges to Obamacare is one such occasion. The Obama administration’s signature achievement promises to be the central domestic issue in the 2012 presidential and congressional elections — and the very nature of the issues raised in this suit all but guarantees that the political debate over Obamacare’s future will favor conservatives.

Why? Americans instinctively tilt to the ideological right on the most basic questions concerning the size and scope of government, and concerning the government’s inability to deliver, with efficiency, high-quality services. This means conservatives control the high ground in our public-policy debates. Show me a legislative battle that boils down to a choice between a larger government that offers us more services but takes more of our money in taxes and a smaller one with fewer services and lower taxes, and I’ll show you a conservative victory for limited government. Show me a debate that requires citizens to choose between the wisdom of government bureaucrats and that of small-business owners, and I’ll show you a decisive vote for the common sense of the private sector. Ask us to evaluate the relative efficiency of federal, state, and local governments, and you’ll find a clear bias in favor of the government closest to the people. Force us to choose between personal responsibility and dependence on government, and the result will dismay our liberal friends. You get the point.

But when the debate moves down to the ground level, liberals often prevail. It is easier, after all, to argue for an increase in the budget for one isolated child-nutrition program than to defend an across-the-board increase to fund the myriad other programs that constitute our trillion-dollar welfare state.

This tug of war was painfully evident in the titanic struggle over Obamacare. Liberal Democrats and their allies knew that if they could succeed in limiting the scope of the debate to health-care issues — who will be covered, how generous their subsidies will be, and what services those subsidies will buy for them — they would prevail. The natural instinct of Obamacare’s conservative opponents, in contrast, was to elevate and broaden the debate, to raise foundational concerns that transcend health care and go to the very nature of the role and purpose of our government: Obamacare’s erosion of individual freedom, the tax and regulatory burdens it would place on businesses and individuals, its effect on jobs, its suffocating effect on the fiscal integrity and overall autonomy of the states, and even its impact on government’s role in making decisions about the beginning and end of life.

Conservatives ultimately prevailed on just about all of these arguments, it seems, but lost the final roll-call votes. Proponents of the most breathtaking expansion of government power in many decades were downright inarticulate in responding to the most frequently repeated question concerning the individual mandate: If it is constitutional for the federal government to regulate inactivity — or, as one federal court of appeals put it, to require “Americans to purchase an expensive product from a private insurance company from birth to death,” or else incur a fine — is there any sphere of our individual freedom that the federal government cannot control?

It is worth recalling the memorable way Judge Roger Vinson, the Florida district-court judge who struck down the individual mandate as unconstitutional, expressed this conundrum: “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

Read the rest of the column

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