Ronald Dworkin has an article in the New York Review of Books Blog (a preview of a longer piece to be run in the NYR), which is entitled “Why the Health Care Challenge Is Wrong.”  Dworkin’s piece, like so many others of later, argues that there is nothing unconstitutional about the Affordable Care Act, and proceeds to outline his arguments.  The problem with Dworkin’s analysis is that he conflates personal opinion, political analysis and legal analysis to wind up with a pastiche of unsupported assertions and declarative sentences that have little or no basis in fact.

Dworkin gets started right away, alleging, like so many other liberals who like the political conception behind the ACA, alleging that it is clearly constitutional.

 The political and social stakes are enormous, but the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act. Many legal scholars predicted a 7-2 decision rejecting the challenge. But they apparently misjudged the dedication of the ultra conservative justices, whose questions in the oral argument have now convinced most commentators that on the contrary, in spite of text, precedent and principle, the Court will declare the Act unconstitutional in June, by a 5-4 vote.

Let’s leave aside that the “most analysts think” rhetoric is an unsupported statement.  Dworkin’s statements above are bereft of analysis and use adjectival language to make the case that, somehow, Dworkin’s position is sound, while those opposing it are extreme.  He sets up the argument as follows: (1) there is no controversy; (2) “many” legal scholars predicted a 7-2 decision (thus implying that it is a clear-cut case in his favor; (3) the only reason why the decision won’t be in Dworkin’s favor is because the justices who may rule against is are “ultra conservative”; and (4) if the justices rule against the ACA it is because “in spite of text, precedent and principle.”  These are the arguments of a policy partisan providing a political reason for why his policy may not be upheld, not the analysis of a legal scholar drilling into the issues.

Dworkin’s next argument is that because the ACA is politically desirable, the law should bend to accommodate it.

 The prospect of an overruling is frightening. American health care is an unjust and expensive shambles; only a comprehensive national program can even begin to repair it. If the Court does declare the Act unconstitutional, it will have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically viable remedy—not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion the strict and arbitrary language of an antique Constitution denies our national legislature the power to enact the only politically possible national program.

What’s truly frightening is not the prospect that the ACA might be overruled, but that Dworkin advocates trashing the Constitution because it’s getting in his way.  The great strength of our Constitution is that it divides authority and prohibits the various centers of power from overreaching or usurping the rights of others.  The system is not set up to be efficient (as Dworkin would like).  Quite the contrary, the system is set up to be inefficient, to pit power against power and default to a stalemate.  This has been a fantastic system, one that has prevented extremism in our government and any one ideology becoming too powerful.  For Dworkin, however, who wants his ideology to prevail and squash competing viewpoints, the separation of powers is, as he says, an “antique” notion that interferes with a more efficient government.  Since Dworkin is a liberal, I presume he is still in favor of keeping those provisions of the Constitution he likes, such as the right to free speech, protection from unreasonable searches and the right to counsel.  However, in a Dworkin world, all of those rights should disappear, as well, if they interfere with the “efficient” operations of government.  It is a truly frightening prospect, not least because dictatorships often argue that they can rise above the petty bickering and divisions inherent in a republic and “get things done.”

And what are we to make of this statement: “…not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion…”?  Dworkin is a learned man, who taught at Yale Law School.  Is he really unable to grasp the concept of separation of powers and the idea that the states have police powers and the federal government does not?  Since we know his background, I can only assume he makes this argument because he believes that such a separation should not exist, which is a political thought but not a legal argument.  Contrast this with those who oppose the ACA on both political and constitutional grounds.  I know of no scholars arguing against the ACA’s individual mandate on the grounds of unconstitutionality that also argue it is impermissible for the states to set up a similar system.  These scholars acknowledge that the states have the police power to force individuals into insurance programs even if it is bad policy.

Dworkin’s next point is equally revealing.  He purposefully misreads the Constitution in order to make his political case:

Why is the difference between restricting and requiring activity so important? Not because the language or underlying principles of the Constitution demand that distinction. The Constitution’s architects were guided by a principle that makes the distinction irrelevant: that Congress should be assigned only those powers that could not effectively be reserved to the states. They believed that if the effects of a particular political decision would be felt only or mainly within a particular state, that decision should be made by that state because decisions by state officials would be more sensitive to local needs and local opinion. But if some matter could only sensibly be settled at the national level, like decisions about foreign trade or the terms of trade among citizens of different states, then the principle required that Congress have the power to decide it. That test can be applied without distinction to both negative and affirmative regulation.

In the above paragraph, Dworkin manages not only to misread history, but also the Constitution itself.   The purpose behind the Commerce Clause was to prevent states from interfering with the commerce of non-citizens.  Congress was worried that Georgia might require citizens from North Carolina doing business in the state to undergo a burden that citizens of Georgia would not bear.  It was not the intent of the Founders to simply grant the federal government unfettered power to make whatever regulations it felt like merely because it felt an issue could not be resolved at the state level.  Even the examples Dworkin gives reveals the weakness of his position: the ability to regulate both foreign trade and trade amongst the states are specifically mentioned as enumerated powers of the federal government in Article 1, Section 8, Clause 3, they are not residual powers.  As for the line in bold above, it is an open and shut case of Constitutional ignorance.   I am at a loss as to how Dworkin could possibly write that the Constitution gives powers to the federal government “that could not effectively be reserved to the states.”  We have two Constitutional Amendments (Nine and Ten) which clearly, and specifically, grant any powers not delegated to the federal government to the people and the states.  This is precisely the opposite of what Dworkin rights.  He is alleging that any residual powers not explicitly granted to the states should devolve to Congress.  The only way that logic works is if the system were the exact opposite of what the Founders intended and what they embodied in the Constitution.

Time and again in this article Dworkin displays a shocking disregard for the separation of powers and the checks and balance system that the Constitution provides for.  Here is another example:

 His second argument was even stronger. Every American already has health insurance; the mandate only requires that he pay for his insurance rather than free-loading on those who do pay. A federal statute and several state statutes require hospitals to provide emergency medical care to people who cannot pay for it, and America’s traditions of compassion mean that doctors will not let people die in pain when they can easily save or help them. In practice, this means that the uninsured will go to costly ER facilities when they need medical help. Congress found that health care for uninsured patients cost $43 billion in 2008; these costs were paid, through higher premiums, by those who do buy insurance.

Dworkin is referring to the Emergency Medical Treatment and Active Labor Act (EMTALA), which says that hospitals must treat critical patients regardless of their ability to pay.  However, Dworkin fails to mention that EMTALA, which is federal legislation, does not apply to all hospitals.  It only applies to hospitals that accept payment from the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, which are federal programs.  In practice, nearly every hospital does accept payments from these sources, and thus are subject to federal regulations, but it is their choice to accept such payments (and thus engage in interstate commerce).  There are some hospitals who do not accept payments from these sources and thus are not subject to EMTALA.  Dworkin has either failed to read the law or is purposefully misleading in his argument.  This notion is further reinforced by the fact that Dworkin, yet again, lumps state and federal together, when the division between state and federal power is at the heart of this entire matter.  A hospital in New Jersey that does not accept federal payments does not need to follow EMTALA.  If New Jersey has an identical law to EMTALA, which applies to all hospitals in New Jersey, there is nothing that the hospital can do to exempt itself from providing emergency care.

The conflation of state and federal power in Dworkin’s piece appears again and again.  If this were the work of a first year law student, I would assume that he simply had not yet read the Constitution or the history behind it.  Coming from Dworkin, it looks like an attempt to break down the separation of powers and to argue that because they are inconvenient, they should be eliminated.  This supposition is further reinforced by the following argument from Dworkin:

So we may ask: is there a constitutional limiting principle that would allow Massachusetts to impose that mandate but prevent it from requiring its residents to join health clubs or buy broccoli? There are of course constitutional limits to any power of government. Neither the indirect mandate of taxation nor any more direct mandate may be discriminatory or irrational, neither may deny due process, and each must serve some proper purpose of government. But are there any special limiting principles that would prohibit a state requiring broccoli purchase in a rational and fair way?

No. We are protected from silly state mandates not because the Constitution rules them out but because politics does. No state legislature would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe. The role of democratic politics in protecting citizens against legislative corruption or stupidity does not depend on whether the legislature wants to require or forbid economic activity, however. Voters would be no less outraged by a state legislature’s decision to ban automobiles altogether than by its decision to make them buy electric cars.

If we do not need a limiting constitutional principle to stop a state from outrageous economic legislation, we do not need any such principle to stop the national Congress, within its proper sphere, either. The Court can allow Congress, as it allows Massachusetts, to mandate health insurance without finding a constitutional barrier to a national compulsory broccoli purchase. Politics supplies the appropriate check in both cases. So we must turn to the genuinely important question, the second question I distinguished. What is Congress’s proper sphere of control in health care matters?

What does the above argument amount to?  It is nothing less than a call for the abolition of the Constitution and its fundamental purpose of prohibiting overreaching state power.  Dworkin is arguing for eliminating those provisions of the Constitution that protect the minority from being discriminated against by the majority.  The entire purpose of separating power and spelling out enumerated powers for the federal government is to put limitations on the government, despite the will of a slim majority.  We can change the Constitution, but only when it is overwhelming agreed to by the public (2/3 both houses, ¾ sates) that such a change is warranted.

Dworkin seeks to replace that protection with the protection of politics.  “No state legislature,” he says,  “would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe.”  I am going to leave aside the fact that Dworkin references a “state legislature,” which most people (even those opposing the ACA) agree can force broccoli purchases and health insurance mandates and approach this from the federal level, since that is really the concern.  How does Dworkin know Congress won’t pass a broccoli mandate?  Congress passes lots of stupid pieces of legislation – it does it all of the time.  Simply because Dworkin can’t foresee Congress passing a ridiculous law, that does not mean that it won’t.

I am curious to know what Dworkin’s view is on the unfettered power of Congress to dictate non-economic issues in the same way.  If Congress were to pass a law banning gay marriage, or a law that says no warrant is needed to arrest a suspected terrorist or a law that prohibits insulting a politician would he defend those laws from attack based on Constitutional objections and instead simply assert that the people can vote a new Congress into office?  I highly doubt it.

Dworkin has put down a chalk mark with this article.  He is willing to eviscerate the separation of powers and the checks and balances system of our government because he feels it hampers moving the country in a “progressive” direction.  He conflates state and federal power over and over, failing to acknowledge that our system of government is a republic comprised of states with police power and a federal government with limited powers.  Because his Constitutional arguments are weak, Dworkin falls back on political arguments and dresses them up as legal ones.  His arguments regarding the Constitutionality of the ACA amount to nothing more than ‘it is a good idea, therefore it should be legal.”  The ACA may be good policy (I’m inclined to believe otherwise), but that cannot be a legal justification for its Constitutionality.  If the law is not within the authority of Congress to adopt, no matter how good an idea it may be, it is not valid.

Last week, President Obama was caught on an open microphone pandering to Dmitri Medvedev, telling him that after the U.S. Presidential election is over, he will have more flexibility to deal with missile defense issues, the message being that he would prefer to be more lenient and give more to Russia than the public would like.  After the election, when the issue can no longer be used to impeach his foreign policy credentials and affect the voting, presumably Obama intends to acquiesce to major portions of Russia’s position.

After the incident, Mitt Romney went on the offensive, calling Russia our “number one geopolitical foe.”  Vice President Biden then criticized Romney, stating “This is not 1956… [w]e have disagreements with Russia, but they’re united with us on Iran. One of only two ways we’re getting material into Afghanistan to our troops is through Russia … if there is an oil shutdown in any way in the Gulf, they’ll consider increasing oil supplies to Europe.”  Secretary of State Hilary Clinton stated “I think it’s somewhat dated to be looking backwards instead of being realistic about where we agree, where we don’t agree.”

Biden and Clinton are undoubtedly correct that our relationship with Russia is vastly different the it was with the Soviet Union, and we should approach it differently.  However, it is the Obama administration, not Romney, that is mired in a Cold War frame of mind with respect to Russia.  Actually, it might be fairer to say that the administration is schizophrenic.  When it comes to public platitudes, photo ops, trade and energy policy the Obama administration has taken the position that Russia is a relatively innocuous country with a leadership that can be actively engaged and reasoned with to find common ground.  However, when it comes to nuclear policy, the administration’s policy is calcified in the Cold War, as is clearly evidenced by its stance on nuclear and missile defense issues.

The nuclear issue could not be more clear.  President Obama, in his 2009 speech in Prague, stated: “To reduce our warheads and stockpiles, we will negotiate a new Strategic Arms Reduction Treaty with the Russians this year. (Applause.) President Medvedev and I began this process in London, and will seek a new agreement by the end of this year that is legally binding and sufficiently bold. And this will set the stage for further cuts, and we will seek to include all nuclear weapons states in this endeavor.”  Just last month, Obama in a speech said: “We can already say with confidence that we have more nuclear weapons than we need.”

Obama’s statements are irreconcilable with those of Clinton and Biden.  According to Obama, we had too many nuclear weapons in 2009, and we still do in 2012.  Yet, despite this allegation, the Obama administration did not unilaterally cut the U.S. nuclear stockpile.  If we are no longer in the Cold War, and Russia is not a strategic threat in the same vein as the Soviet Union, then logically there is no reason not to unilaterally cut unnecessary and costly nuclear weapons from our stockpile.  What did the Obama administration do instead?  It entered into the bilateral New START talks with Russia, an action that is both inconsistent and illogical if you believe Clinton & Biden.

The only reason to have entered into the New START talks, and to ratify the treaty was if you had a Cold War mentality that Russia and the Soviet Union were, for purposes of nuclear discussions, essentially the same.  Every other nuclear power was left out of the discussion, just as would have occurred during the Cold War.

Similarly, when dealing with missile defense, this administration has demonstrated a Cold War mentality.  Much of our missile defense debate is absorbed by what the Russians will think and do. We talk about negotiating with them, about sharing information with them and even, perhaps, sharing our system with them as a way of buying their acquiescence.  Time and time again Putin has objected to some aspect of U.S. missile defense and, time and time again, we go to negotiate with Russia, as if they should have some input into our missile defense posture.  The reason the administration has done this is clearly the result of a Cold War mentality, where we don’t want to push Russia/the Soviet Union too far.  If our foreign policy establishment and the administration did not have this attitude, then every time the Russians objected, we would simply tell them, nicely, to go pound sand.  We don’t.  Instead, we bargain with them, bilaterally, in the same manner as we would have with the Soviet Union.

All of that said, Romney is still right to view Russia as a threat and Clinton/Biden are wrong in their assessment of Russia’s friendliness.  There never was a “reset.”  Russia, under Putin’s leadership, is fundamentally opposed to the United States.  At every turn, Russia takes the opportunity to stand in the way of U.S. interests, whether it is Iraq, Iran, missile defense, Libya, human rights, etc.  The Russian administration is corrupt and fundamentally opposed to U.S. power and U.S. interests.  Despite the myriad instances of Russia working against the United States, the foreign policy arm of the Obama administration adheres to the fantasy that Russia can be a strategic ally of the United States.

To that end, it applies a see no evil/hear no evil approach, purposefully failing to acknowledge the ways in which Russia has opposed U.S. strategic interests.  Biden’s comment about Russia “consider[ing] increasing oil supplies to Europe” in the event of an Iranian problem is a perfect example of this willful blindness.  Just a few years ago, Russia was using the threat of withholding energy from our allies in Europe as a way to undermine U.S. influence in the region.  Now, the Vice President is claiming Russia will work with the United States to increase energy supplies should a shortage arise.  This is foolish speculation; history indicates that the opposite is likely to occur.  If Iran spirals downward and energy prices increase a result, this will only give Russia a greater ability to use energy as a weapon in Europe, and more of an incentive to do so.  If Biden and other members of the foreign policy establishment fail to understand that dynamic, they are fools.  If they do understand the dynamic, but have chosen not to mention it for diplomacy’s sake so that they can pretend Russia is a legitimate partner, then they are doing a disservice to the American people.

It is debatable that Russia is our greatest geopolitical foe – there are many contenders – but it is certainly near the top.  Calling out Russia’s corrupt leadership, its dirty policies and its record of undermining U.S. interests does not show Romney to be stuck in a Cold War mentality – he does not allege that Russia is special.  Rather, it shows that he understands Russia, like many other countries, such as China, Iran, North Korea and Sudan is a threat to U.S. interests.  Contrast that with the Obama administration which, through its actions, has treated Russia as a special case, agreeing to treaties and entering into negotiations as if it carries both the power and intent of the Soviet Union.

Over the last week, we have heard a chorus of voices on the left arguing that striking down the Affordable Care Act will constitute “judicial activism,” something which conservatives have railed against for years.  It is increasingly frustrating to listen to commentators on the left, who disingenuously argue against judicial activism, having preached its merits for years, mis-characterize, either purposefully or from a lack of comprehension, what judicial activism is. Today, President Obama chimed in.

I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.

This statement summarizes the canard about judicial activism that has been making the rounds.  Judicial activism occurs when a court effectively acts as a legislative body, substituting its own judgment about what that law should be, rather than simply interpreting the law.  Thus, if a case came before a court regarding a state law that prohibited a liquor store from selling cold soft drinks and the court, merely because the judges found the law to be idiotic, invalidated the law, the judges would be guilty of judicial activism.  On the other hand, when a judge strikes down a law because it conflicts with a superior law (such as striking down a statute that forbids criticizing politicians on the basis that it violates the First Amendment) he is not substituting his judgment about what the law should be for what the law is, he is substituting the higher law for the lesser one.  Not only is this not judicial activism, it is his sworn duty.

Dahlia Lithwick at Slate hosted an online chat session today.  This was the best part:

I normally don’t like to attack people personally when it comes to policy arguments.  But Jonathan Chait’s piece in New York Magazine is of such low quality that either he is, and I am afraid there is no other way to put this, an idiot or else he is so far to the left that he is no longer capable of making rational arguments.  Either way, New York Magazine ought to be ashamed to allow such poor analysis to appear in its pages.  You don’t need to have a high bar, but there should at least be a bar.

To begin, Chait says “[t]he case against the Affordable Care Act rests upon stringing together selective use of precedent, wildly obtuse understanding of the facts of the issue, and bizarre hypotheticals.”  First of all, I’m not sure how Chait thinks legal cases at the appellate level are normally undertaken, but precedent and hypotheticals are generally two of the major factors which influence legal analysis.  One of the primary purposes of an appellate court – and particularly the Supreme Court – taking on a case is to set a precedent that will govern future cases, most or all of which are hypothetical at the time the decision is made, since they will all be decided in the future.  Future cases are almost never 100% on point with the governing case, which is why analogies and hypotheticals are used to link those cases to past precedent.  For instance, when the Supreme Court just ruled that when the police attached a GPS device to a car without a warrant it violated the owner’s Fourth Amendment right against unreasonable searches and seizures, it analogized to past cases.  Justices in that case, as they do in many cases, also asked hypotheticals as a way to get out the main principles that are being argued.  Virtually the entire purpose of a Supreme Court case of the Obamacare type is to understand the broad principles, beyond the technicalities of the case at hand, that are at issue and to deliver an opinion which covers those broader principles.

Next, Chait delivers this paragraph of wisdom:

The debate seems to have centered around a “limiting principle.” If you haven’t closely followed the arguments, here is what it means. The challengers have managed to wall off the health-care law from overwhelming precedent that would uphold it by defining the individual as something wholly different from other regulations — a regulation of “inactivity,” as opposed to “activity.” The distinction itself lacks any legal or even intellectual precedent. Having accepted a shaky series of premises, this has led the Court to settle on what it regards as the central issue of the case: If Congress can force you to purchase health insurance, why can’t it make you buy broccoli, or anything at all? (And since this would be bad, then obviously Congress can’t be allowed to make you buy health insurance.)

First of all, just declaring that the distinction between activity and inactivity is meaningless is not an argument.  Second, the third sentence in the above paragraph does not even make logical sense.  I can’t even comment on the sentence because it isn’t even a coherent thought.  Third, Chait is jut plain wrong here; the distinction between activty and inactivity has a long history in jurisprudence and significant meaning.  You can look to the law of torts for an easy example.  If I see a blind man about to fall off a balcony and all I need to do is say “watch out”, I have no obligation, whatsoever, to give him a warning.  I can do absolutely nothing.  As for precedent when it comes to the Commerce Clause, Chait is right, there is none, and that is precisely the point.  The Federal government has never before tried to regulate inactivity.  This point was de facto conceded over and over again during the oral arguments by the government when, instead of trying to argue that it was regulating inactivity, it claimed that it was really regulating future/inevitable activity.  If he can’t understand how this would be a momentous change in legal precedent, he shouldn’t be allowed to pick up a pen.

Chait’s next point:

There are many possible ways to solve this objection, if a Justice were so inclined to look for them. Health insurance is inherently different from almost any other product, with inherent problems of cost-shifting and adverse selection. (The economics of this seem to be utterly eluding the conservative justices.) As former Reagan solicitor general Charles Fried argues, the absence of the mandate would have a major impact on already-existing interstate commerce, which cannot be said of broccoli consumption. Or, as Matt Steinglass offers, mandating the purchase of broccoli might be marginally helpful to the goal of containing health care costs — eating broccoli makes you slightly healthier — but it’s certainly not necessary, as an insurance mandate is.

First of all, the fact that health insurance is a unique market is hardly a Constitutional argument.  Just because something is unique, it doesn’t mean that all of the sudden the checks, balances and limits set on government power go out the window.  Second, the health insurance market is not unique from a legal perspective.  Chait links to an economics piece arguing that broccoli, cars and burial insurance are different from health insurance.  From an economic perspective, they may or may not be distinguishable from health insurance(I am refraining from debating that issue here), but that has no bearing on whether health insurance is unique as a legal principle.  Third, the fact that the absence of the mandate would have a major impact on already existing commerce is a foolish argument because is applies to everything, everywhere at every point in time – every non-decision has an affect on existing commerce and is infinite.  Every second I don’t buy a sandwich I, in theory, affect the sandwich market.

After this, the article just descends into Chait’s bread and butter – character attacks and political arguments (conservatives are evil, liberals are great, etc.).  I’ll save those for another time – I find him equally foolish on policy, but at least his arguments aren’t opinion trying to masquerade as analysis.

Jeffrey Rosen argues in The New Republic that Solicitor General Verrilli could have made a case to the Supreme Court that there was, in fact, a limiting principle on Obamacare and thus could be upheld as Constitutional.  That argument rests on the assumption that the absence of a limiting principle is the only problem with Obamacare’s Constitutionality.  It is not.  Even were there a limiting principle, you would still face the issue that in our jurisprudence we don’t hold people responsible for inaction.  Leaving aside that point, let’s assume that the limiting principle is the main barrier to Obamacare being considered Constitutional.  Does Rosen’s argument hold up?

The limiting principle goes something like this: In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women, the Court has drawn a distinction between activity that is truly local and activity that is truly national, in the sense that the states aren’t able effectively to regulate the activity on their own. When it comes to violence against women or guns in schools, states arguably have the will and the resources to respond to these problems.

But when it comes to providing insurance guarantees for the uninsured, any state would be worse off if it tried to solve the problem on its own, because it would end up attracting uninsured people from other states seeking to take advantage of its benefits. Because states know this in advance, most don’t even try to solve the fundamental problems of health care coverage. Indeed, Representative McGovern of Massachusetts—the only state to pass a universal mandate—made a similar argument during the congressional debate over the Affordable Care Act when he said that a national mandate would free Massachusettes from being “forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance.”

The answer is no.  Rosen’s arguments are not legal arguments – they are policy positions dressed up as Constitutional analysis.  Rosen may be absolutely right that the insurance problem doesn’t work at the state level because any state would be worse of trying to solve the issue on its own.  He may be correct that the best way to solve that problem is to have a national system.  However, just because the solution may require federal action, it does not follow that the authority to act is granted to the federal government.  In the extant case, the proper solution would be to pass a Constitutional amendment, providing that the government may impose a penalty on citizens who do not wish to purchase health insurance.  Of course, this is a very difficult task, and one not likely to succeed, but that doesn’t mean that you get to choose an illegitimate means of implementing the chosen policy.  The purpose of the Constitution, federalism and separation of powers is precisely to protect against powerful minorities or simple majorities imposing their views on everyone else.  That is why we have such a high burden (2/3 or both house, 3/4 of the states) to change the Constitution, and thus change the fundamental rights and responsibilities of citizens.

Rosen is also wrong about the purpose of the Commerce Clause.

In addition to having been endorsed by the Supreme Court in 1937, this principle is also deeply rooted in the original understanding of the Constitution. As Neil S. Siegel of Duke University argues in a forthcoming article about the health care mandate and original understanding, “the Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce.” Siegel argues that “to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action.”

Conservative justices, who care about the text, history, and original understanding of the Constitution, might have been persuaded by this argument about how the framers wanted Congress to be able to regulate economic free riders. And it would have provided a convincing answer to their hypothetical questions about why the government can’t regulate broccoli, or burials, or cell phones. Unlike affordable health care, the problems of providing healthy food, or burials, or emergency response are ones that a state can solve on its own without becoming a magnet to people from other states.

The Cooter-Siegel formulation of the Commerce Clause, to which Rosen is referring, is an ex-post theory constructed in 2010 in which the authors argue how the Commerce Clause should be interpreted.  This formulation ignores the clear intent behind the Commerce Clause, both in its plain meaning and its historical context, to prevent states from favoring their own citizens at the expense of others, and instead offers a justification for broad government based upon an interesting, but clearly incorrect view of Article 1 Section 8’s intent.  The authors, in their theory, go so far as to suggest that what prevents the federal government from regulating common crimes, such as assault, is the distinction between whether states can handle the problem on their own or not.  This is wildly inconsistent with the absolutely clear intent of the Framers to deny police powers to the federal government and grant them to the states.  The failure of states to act, or to be able to act, does not automatically grant police power to the federal government, even if it is a good idea.  Should Tennessee all of the sudden find itself with a massive crime problem that is beyond the capability of the state police to handle, it does not follow that the federal government may just step in at will, absent an invitation from the state, and do what it takes to solve the problem.  While such action may be desirable, the separation of powers means that such a move would be an ultra vires act.

For some reason, Mike Tomasky seems to be writing some very foolish pieces of late.  His latest one, entitled “Behind Court Challenge to Health Care Lies the Right’s ‘Freedom Fetish’” is a case in point.  According to Tomasky, all concerns about the nature of big government encroachment under the direction of Obama are misplaced, to wit:

I defy anyone to name for me a specific and precise freedom that Obama has taken away from the American people. You can’t. When they’re not just invented out of whole cloth by multi-millionaire propagandists, all such laments are based on ignorance about what freedom actually means and an equal ignorance about how our system of government works.

Well, I can name two – the freedom not to subsidize birth control if you have a moral objection and the freedom not to be forced to sign up for healthcare.  Should the Supreme Court uphold Obamacare under the Commerce Clause, that denial of freedom will extend not just to healthcare, but to many, many other areas of economic freedom, as well.

On the subject of contraception, Tomasky writes:

But there is no freedom issue here. Neither is there a freedom issue with regard to the Catholic Church and the recent controversy over contraception. First of all, no church has to change a single thing about the way it operates. And Catholic hospitals will not, under the new rule, have to provide contraceptive coverage—they will just be required, if they refuse to provide such coverage, to tell enrollees how they can acquire it through other means. In fact, now that I think about it, the only people who can make any claims that their freedoms are being impinged by the Obama administration are the non-Catholic women hired by Catholic hospitals who might now have trouble getting free contraceptive coverage.

Tomasky is simply wrong on the first point.  Churches are being required to change the way they operate.  If they provide healthcare, they must provide contraception.  If they opt not to provide it, then the health insurance company they use must do so at no cost.  Of course, since contraception isn’t free, where does Tomasky think the money is going to come from to pay for it?  The answer is an overall increase in fees.  Furthermore, some religious institutions self insure, which means that even were the exemption to work in third party insurance cases, it doesn’t work for those institutions.

The contraception issue, while important, is small potatoes compared to Obamacare.  On this subject, Tomasky really demonstrates a lack of understanding about the Founding Fathers, the Constitution and principles of a limited federal government.  Here is what he has to say:

The silliness of the freedom argument against Obama really comes down to this: The ACA was a law, made within our political processes, according to the rules and norms of same. Obama isn’t the king. He didn’t decree this law. Congress negotiated it and passed it. If people don’t want such laws, they need to elect Congresspeople that won’t make them. This, incidentally, is the answer to an oft-bruited rhetorical question, “What’s to prevent the government from making a law requiring that everyone eat broccoli?” One answer is: nothing, at least in theory. If a future Congress wants to make such a law, it can do so and see what happens in the courts.

To begin with, the argument that Obama has not taken away freedoms because he didn’t simply decree Obamacare but because it passed as a law is obtuse.  Obama is credited with the results of Obamacare because he was the driving force behind it.  Of course other people are responsible as well, including every member of Congress that voted for it and the organizations that pushed for it.  However, there are degrees of influence and Obama is clearly the most influential person involved in the matter.  I can only imagine what Tomasky must have written when George W. Bush’s tax cuts were passed – ‘he didn’t decree this law; he’s not really responsible.’

The second part of Tomasky’s analysis is even worse.  It shows a complete and utter lack of understanding that the Constitution is a limiting document meant to check federal power.  One of the most basic tenants of that check on powers is that the federal government does not have a general police power, only states do.  Thus, it is beyond the power of the federal government to pass a law requiring eating broccoli, even if every single senator and congressman thinks it is a good idea.  That is the whole point of the Constitution – to protect certain rights from being trampled merely because a majority of people think they are outdated or irrelevant. The answer is most certainly not “nothing.”

Finally, Tomasky’s last thought, Congress can do whatever it wants and then “see what happens in the courts” is an appalling notion.  Congressmen and the President take an oath to uphold the Constitution of the United States.  With that oath comes the responsibility to pass only laws which a person believes are Constitutional.  If a congressman or the President has before him a law which he believes is in the best interest of the country, politically, but he knows it runs counter to the Constitution, he has a duty not to vote for it.  The courts are a check on congressional and executive power, but congress and the President are not children, aiming to get away with however much they can before a parent stops them. In Tomasky’s world. however, it would seem that the oath of office is merely a ceremonial nod to antiquated ideas.

Tomasky concludes his editorial with the following:

The classic definition of freedom, or liberty, is still John Stuart Mill’s. His sentence that goes, “Over himself, over his own body and mind, the individual is sovereign,” can be quoted out of context to imply that a person shouldn’t have to buy health insurance. But context shows that a few sentences earlier, Mill discussed the harm principle. A person can act with complete freedom so long as his actions don’t harm others. Well, pal, if you’re healthy and 35 and you don’t buy insurance and you get hit by a bus and you need $10,000 in medical care and you can’t and don’t pay for it, that harms me, because I’m an insured taxpayer and I’m helping to pick up your tab. That is freedom: not just the right to be left alone, but also the obligation to take responsibility for the consequences of one’s own actions on the freedom of other members of society. By that definition, the ACA is enhancing freedom, and personal responsibility—which is why conservatives were for the mandate in the first place.

I guess Regan’s old line about the difference between a Marxist and capitalist being that a Marxist has read Marx and a capitalist understands Marx can now be updated to include John Stuart Mill.  While Tomasky can clearly read, he lacks the faculty to understand, or chooses not to.  Freedom and liberty do indeed come with the obligation not to do harm.  However, in what can only be described as Orwellian wordsmithing, Tomasky’s argument has twisted and distorted Mill’s classical concept of what is meant by harm.  Under the classic meaning, I can swing my arm wherever I want, so long as I don’t swing it into your face.  It most definitely does not mean I have to support, subsidize or otherwise do anything to help you.  Should you fall into a river, I am under no obligation to save you.  Yet, under Tomasky’s twisted logic, any action taken by anyone where benefits accrue at the expense of another can be labeled “harm,” and thus regulated at the federal level.  If I outbid a competitor on a contract and, as result, he cannot pay his rent and gets thrown out on the street, there is no doubt I contributed to his misfortune, or harm.  However, it is equally not in doubt that such a connection would ever rise to the level of “harm” as articulated by Mill.

Today the Supreme Court hears Obamacare’s main arguments.  In Griswold v. Connecticut, the Supreme Court invented the right to privacy in order to strike down a ban on contraceptives.  If the Supreme Court finds in favor of Obamacare, absent the Griswold decision, under the Commerce Clause would the federal government be able to prohibit the sale of contraceptives?  After Obamacare, are the only things standing in the way of federal regulation of any good or service individual Supreme Court decisions on specific issues (contraception, abortion, travel, etc.)?

The piece is long, but its essence is that it would be judicial activism for the Supreme Court to overturn Obamacare because it overrides Congress’ vote.  The true conservative vote, according to Tomasky, is to uphold Obamacare and let Congress change it, if it wants.

Tomasky makes a mistake I see all to often from people who don’t like the thought of legislation being voted down because it supersedes Congressional authority: equating a ruling against a law’s constitutionality with activism.  It is a mistake in logic.

The conservative position , which is entirely logically consistent, is not that overruling Congress should be avoided, but that in the absence of a constitutional principle, one should defer to the legislature.  That is, judges should not interject personal beliefs about how the law should be; they should only rule on what the law says and (in the case or originalism) what the law’s intent is.  Thus, if Congress were, for instance, to pass a tax of 80% on the first $20,000 of a person’s income, no matter how stupid, destructive and unfair it would be, the courts should not look for, or concoct, some excuse to to override the law because the Sixteenth Amendment clearly gives Congress the authority to implement income taxes.  However, if a city, suffering from crime, adopts a law that says anyone on the streets after midnight may be stopped and searched by the police at will, without any reason, that law must be struck town because the wording and the intent of the Fourth Amendment are designed to protect against unwarranted government intrusions.

In the case of Obamacare, the question is what is the limit of the commerce clause’s power? Even if one does not believe, as I do, that Wickard v. Filburn is the most political and wrongly-decided case of the last 100 years, there is still a very strong case to be made that Obamacare exceeds Congress’ authority.  At the heart of the issue is what are the limitations of the federal government in a federal republic designed with the intent of limiting government powers?  A finding in favor of Obamacare would seem to indicate that there are no limitations, whatsoever, on the federal government’s power in economic life.  That would be an absurd understanding of the Constitution, in my opinion, though clearly people such as Tomasky have no problem with it.  However, regardless of where one falls on the issue, the charge that it is activism to strike down a law that conflicts with the wording and intent of the Constitution is absurd on its face.

From the Washington Examiner:

White House Press Secretary Jay Carney didn’t pull any punches in his attack on Paul Ryan’s budget, as he declared that supporters of the budget — and by extension, Ryan himself — are “aggressively and deliberately ignorant” about the need for green energy and other programs slated for cuts.

“You have to be aggressively and deliberately ignorant of the world economy not to know and understand that clean energy technologies are going to play a huge role in the 21st century,” Carney said after decrying the clean energy spending cuts in Ryan’s plan. “You have to have severely diminished capacity to understand what drives economic growth in industrialized countries in this century if you do not understand that education is the key that unlocks the door to prosperity,” he added.

Carney concluded that “the budget proposed by Chairman Ryan and supported overwhelmingly already by Republicans suggests that those problems” — aggressive ignorance and diminished comprehension — “exist in the minds of the supporters of that plan.”

Carney apparently is unable to understand where his own analysis should lead.  If Carney is right and green technology is going to play a huge role, then why does the government need to subsidize it?  The only legitimate reason for the subsidies is because the government feels it SHOULD play a big role and the amount of money funding it is insufficient to enable green tech to play such a role (illegitimate reasons would be items like rewarding political donors), a matter open to debate.  The fact that he feels the need to have the government give money to green tech companies is therefore a de facto acknowledgement that such technologies are unable to play a huge role absent artificial support.

It would be nice if instead of ad hominem attacks the Democrats answered the policy arguments that are at the root of Ryan’s budget.  One can certainly make a case that the government should subsidize clean tech for political reasons (though I would vehemently disagree and I think the evidence shows that the subsidies are not worth their cost), but instead of doing so and having an honest debate, all we get is demagoguery.  It doesn’t say much for the White House that they either can’t or won’t respond in a serious manner.  All Carney had to say was ‘we disagree with Ryan’s assessment of the situation and his proposed remedies – clean technology will be a vital part of the 21st century and there are good reasons why the government should back it, starting with…’, which would at least get us started talking about the merits of the administration’s plans vs. the Republicans.  The personal attacks are a sign that the Obama administration is unable to convincingly end the previous sentence and the intellectual foundations for its position are weak.