Saturday, March 31, 2012

It's not just about health care.

Are we on the verge of a constitutional revolution? The marathon arguments in the Supreme Court this week on the constitutionality of the Affordable Care Act have raised the real possibility that parts or all of the statute will be overturned. The predominant view of constitutional scholars, most of whom thought there were no serious questions about the constitutionality of this statute, suggests that the Court cannot declare the law unconstitutional without a fundamental re-thinking of our constitutional framework (unless the Court comes up with a rationale somewhat like its unprincipled decision in Bush v. Gore, that has no application beyond the present case). If instead the Supreme Court decides on some principled basis to find that Congress has no power to impose a health insurance mandate, that would imply that we are heading back toward a narrow interpretation of the Commerce Clause that was thrown out back in the Roosevelt era. If the Supreme Court overturns the Medicaid expansion, the Court would be calling into question the nature of the federal government's spending powers that have been taken for granted for decades.

I will admit I am somewhat alarmed by the prospect. If the Supreme Court adopts a Tea Party view of the Constitution necessary to overturn the Affordable Care Act, that will most likely have implications way beyond health care, and way beyond the political implications for either party this year. Conservatives may think they are advocating a return to the "good old days" of old-fashioned constitutional thinking, when the federal government actually had much more limited powers and responsibilities. That kind of constitutional thinking did not bring about any good old days, however. It brought about . . . the Civil War.  It brought about . . . the Great Depression. In both those cases, the country decided we needed to expand the federal government's powers to prevent such crises from occurring again.

In our own time, we only need look to Europe to see how difficult it is for a weak union to deal with a major financial crisis. Conservatives like to warn us of the dangers of European welfare programs and worker protections. They should worry about the capacity of a weak federal government to maintain the economic strength and cohesion necessary to compete in a global economy. That is where Europe is failing, and where the United States would fail also if we were to try to return to the imagined glory days of a weak federal government.

1 comment:

  1. I agree, this is not as much about health care as it is about government over reaching and the constitutionaly of the mandate in the law.

    Having said that I think the mandate will be struck down but the expansion of Medicaid is a no brainer (it is a government program).