December 7, 2010

Paper disappointed by candidates it endorsed

The Milwaukee Journal-Sentinel wishes the two candidates it recently endorsed for election — attorney general J.B. Van Hollen and governor-elect Scott Walker — would drop their "political charade" of opposition to the federal health care reform act. But the paper could have easily seen this coming, so its offended posture is a bit silly.

The paper is half right about one thing: The longer Wisconsin waits to join — or file a friendly brief alongside — one of the existing lawsuits, the more Van Hollen's involvement appears purely political.

But this much was apparent more than a month ago.

Truth be told, the incumbent governor James Doyle assumed much of the blame for politicizing the State's official response to the health care act. Recall that back in March, when Van Hollen expressed his desire to protect Wisconsin's position in the constitutional scheme, Doyle denounced the AG's plan as a "frivolous and political attempt to thwart the actions of Congress and the law of the country."

That's ridiculous. I submit it was Van Hollen's duty, whatever the ultimate meritoriousness of Congress's defensive arguments.

There's a legitimate question here, whether Congress has the power to coerce into existence, on threat of penalty, the commerce it is empowered to regulate. It's something that Congress has never attempted before and, despite the U.S. Supreme Court's approving on several occasions mighty dubious reaches of the interstate commerce power, there is no clear guidance as to this situation.

Except, of course, the text of the Constitution, which seems to me — and plenty of others far more knowledgeable — not to contemplate something like the insurance mandate that drives health care reform.

(But we don't read the Constitution much anymore; we tend to dwell instead on the interpretations of federal courts. That's a problem.)

Meanwhile the Journal-Sentinel accuses the mandate's legal challengers of "rely[ing] on faulty reasoning," and then the paper immediately frames the central inquiry as follows: "Is the purchase of health insurance an economic activity?" Obviously the answer to that question is 'Yes,' except unfortunately that isn't the question.

The problem is, there is no commerce — interstate or otherwise — to regulate at all until Congress forces it into existence on threat of penalty through the individual insurance mandate. That the federal government is one of limited, enumerated powers is not a Tea Party cliché, it's an historical fact plain to any cursory student of politics.*

And that the J-S compares a federal mandate to a State mandate, where States possess plenary as opposed to enumerated powers, belies either the paper's desperation or its ignorance. There simply is no such comparison and in short, it's incumbent on any of the State AGs to ensure those plenary powers are not about to be usurped by a seriously questionable exercise of otherwise limited federal power.

Talk about your faulty reasoning.

"It is absolutely essential to have a mandate," declares the J-S, in spite of the constitutional roadblocks its editorial utterly fails to engage. It may be good policy, and it may save hundreds of millions of dollars eventually, but you don't have to be an Idaho militiaman to be wary of judicial precedent that authorizes the federal government to force citizens into commercial transactions against their will.

* It's why Madison thought an attached bill of rights redundant.

h/t folkbum.


Anonymous said...

Just curious, are you currently covered by a health insurance policy? I'm sure you believe in the legal position you're staking out in these posts, but I can't help but wonder if there's something more personal to your opposition -- perhaps the requirement that you would be compelled to purchase health insurance or face a tax penalty under the federal law.

illusory tenant said...

It's nothing personal. And I think it makes good sense as policy, I just have a hard time imagining it will pass muster at the Supreme Court.

gnarlytrombone said...

It's nothing personal

You...are a sonofabitch, Kingsfield!

Jeremy R. Shown said...

I'm curious as to why WI has to join (or file a brief) at all. If the mandate is struck down, won't it be struck down everywhere?

In other words, can't we free-ride on the legal efforts of other states, or does it now work that way in the constitutional law world.

illusory tenant said...

If the mandate is struck down, won't it be struck down everywhere?


Can't we free-ride on the legal efforts of other states?


"Van Hollen acknowledged people have asked what difference Wisconsin could make in the outcome given the number of lawsuits already filed. But he said a multitude of parties can give a position more legal authority.

"'I really do believe it makes a difference,' he said."

That and 50 cents will get you a cup of coffee.

gnarlytrombone said...

'I really do believe it makes a difference,' he said."

Better strategy: set up a Google News alert for Ken Cuccinelli, who will undoubtedly come up with a new headline-grabbing jihad to join.