I LIKED THE ‘BIPARTISAN CONSENSUS’ BETTER…. Obviously, Senate Republicans want to deny President Obama a historic victory, and will do what it takes to try to kill health care reform. But this “Tenther” nonsense points to a caucus that’s gone completely around the bend.
Sen. Jeff Sessions (R-AL)–the highest ranking Republican on the Judiciary Committee–is unclear about the Constitutionality of current health care legislation, and he’s turning for clarity to the Federalist Society.
“I think that’s a good question,” Sessions said on a panel at the Federalist Society’s National Lawyers’ Convention. “Matter of fact I met with my staff…we were talking about, and you know what I said Leonard? I said we ought to ask Federalist society folks what they think too. I said let’s begin to think about that question and what’s the constitutional thing…can the government require to do what we think is in your best interest if you don’t think it’s in your best interest?”
Sen. Chuck Grassley (R-IA), who also sits on the Judiciary Committee, once said there was a bipartisan consensus in favor of individual mandates. But he too seems to have joined the tenther fringe.
Grassley raised the prospect of reform being unconstitutional yesterday, but he’s been at this for a while, initially raising the argument in mid-October.
Let’s just briefly review reality here.
First, Republicans are coalescing around opposition to an idea that they’ve already endorsed. The policy proposal Grassley & Co. think may be unconstitutional is the same policy proposal Grassley & Co. fully embraced just a couple of months ago. Grassley told Fox News over the summer, “I believe that there is a bipartisan consensus to have individual mandates…. There isn’t anything wrong with it.”
Second, the notion that an individual mandate violates the Constitution is absurd. As Ezra Klein noted yesterday, “[Y]es, the individual mandate is constitutional. For a roundup of the argument, see this Tim Noah piece. For a longer, more technical explanation, see this post by law professor Erik Hall. The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I’ve also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn’t explicitly give the federal government jurisdiction over entryways.”
A question Ruth Marcus raised the other day continues to ring true: “You have to wonder: Are the Republican arguments against the bill so weak that they have to resort to these misrepresentations and distortions?”
