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Sunday, April 1, 2012

Don't blame Verrilli: Hard to defend the indefensible

So last week's Supreme Court arguments over Obamacare weren't exactly a smashing success for the Obama administration. How bad was it? Bad enough that Jeffrey Toobin called the event "a train wreck," Mother Jones called it a "disaster," and constitutional law professor Ann Althouse, amid terrible reviews of Solicitor General Donald Verrilli's performance, wondered if Verrilli had taken a dive, deliberately throwing the argument so that the Obama administration would no longer be tied to the increasingly unpopular health care bill.

But I think that people are being too hard on Verrilli. He may have coughed and stammered a bit, but his real problem wasn't about performance. His real problem was that he was tasked with defending the indefensible.

The Constitution of the United States was supposed to create a federal government limited to the comparatively few powers specifically enumerated therein, mostly in Article I, Section 8. The idea was that the federal government would address subjects that really needed to be handled on a national level. The states would do the rest, or people would take care of matters on their own.

As James Madison wrote in the Federalist No. 45, "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

To underscore this arrangement, the Tenth Amendment provided that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This division of powers was intended to protect freedom by limiting the scope of the powerful national government. It was also intended to reduce the extent of corruption in the federal government. The powers most likely to encourage corruption were left to the states.

This worked pretty well -- it wasn't until late in the 20th century that the federal government started to catch up with state governments in the corruption department. The subjects entrusted to the federal government by the Constitution -- those largely "external" powers -- simply don't lend themselves to corruption. On the other hand, when the government lays a heavy regulatory hand on almost every business and industry, the temptation for those regulated to buy off the regulators -- or to simply buy "protection" from them -- becomes much greater. That has increasingly been the pattern in recent decades, even as, not so coincidentally, the public's trust in the national government has steadily declined. As P.J. O'Rourke famously said, when buying and selling are controlled by legislation, the first things to be bought and sold will be legislators.

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