Obamacare Rests On Shaky Historical Foundation

One of the most common assessments being made among gloomy conservatives of late is that once passed, President Obama’s health care legislation will cement itself as an immutable political truth like Social Security and Medicare have, and that this “starter house” will usher the way to a full-fledged single-payer system.

While it’s without question possible this may happen, and while passing Obamacare later today would constitute a major blow to individual liberty and economic freedom, not to mention the constitutional limits on the federal government, it is by no means certain that past developments of entitlement programs will inform how this one proceeds.

First, should Obamacare pass today it will engender legal and political revolt by state governments. Some three-dozen states have passed or are in the process of passing legislation which would fight Obamacare on various constitutional grounds. In Louisiana, for example, a bill by state Sen. A.G. Crowe which would attempt to nullify this federal legislation has been filed in advance of the state’s legislative session which begins at the end of the month and is expected to pass. Crowe’s bill, SB26, is known as the Louisiana Health Care Freedom Act; it sets forth a number of constitutional objections in advance of what will inevitably be a legal fight.

  • The bill relies on a 1997 Supreme Court ruling in Printz v. United States which forbade the federal government from imposing unfunded mandates on states. It declares that the Obamacare legislation, by expanding the Medicaid rolls, does just that.
  • Louisiana state law prohibits public funding for elective abortions outside of a few limited cases, and the Senate bill’s shaky prohibitions on federal funding could bring it into conflict with Louisiana law. A proposed executive order to that effect won’t remedy legislative deficiencies in the federal bill, particularly if, as expected, that executive order is eventually rescinded by the current president.
  • Crowe’s bill raises the constitutionality of individual mandates in the Obamacare bill by declaring that no Louisiana citizen or resident can be mandated to participate in a health plan of any kind, and no rule or law may prevent Louisiana patients or health-care providers from paying or performing lawful health care services directly. It also declares the right of a health-care provider to refuse to participate in any health care plan, which would be a wall of sorts against a federal move to keep doctors from refusing to treat Medicare or Medicaid patients in the future.
  • Exemptions like Gator Aid and the Cornhusker Kickback which would alter the formula for Medicaid or Medicare funding for some states and not others are considered by Crowe’s bill to be violations of the Fourteenth Amendment’s Equal Protection clause, and also the Privileges and Immunities clause in Article IV, Section 2 of the Constitution.

There are lots of other examples across the country of state legislation aimed at fighting the feds on health care. Virginia attorney general Ken Cuccinelli is becoming a household name of sorts as he has publicly threatened to be in court next week should Obamacare pass, and that state has passed legislation to support his challenge. Idaho has done the same thing, and more than 35 other states have put their wheels in motion. Legal experts have mixed opinions on whether these various challenges might succeed in a constitutional format, but if there are indeed 37 states with legislation attempting to nullify Obamacare political reality will certainly color both the legal dispensation of those challenges and the attempts at implementing it as we go forward.

Historically, at least over the last 70 years, there have been few instances in which the Supreme Court has struck down the expansion of federal power. The guess here, though, is that if a state or individual challenge makes it to the Court there are at least four votes – Roberts, Alito, Thomas and Scalia – to throw Obamacare out. Kennedy could well be the fifth.

The legal and constitutional fight this bill will generate is going to be a fascinating exercise and it should make for a renaissance of sorts in both constitutional philosophy (which is already underway thanks to the Tea Party movement) and a flowering of informal education on the history of the expansion of federal power (which is also underway thanks to books like Amity Shlaes’ The Forgotten Man and Jonah Goldberg’s Liberal Fascism). That will be a healthy development, and the presence of the internet, talk radio, cable news and the other alternative or new media will help to insure that a variety of points of view are much better represented than they were, say, when Lyndon Johnson’s Great Society was implemented.

Which brings us to November, because while the backlash against Obamacare on the legal front and within the relationship between the federal government and the states will be both fascinating and significant the real difficulty the president is going to have in implementing this thing will come when he loses one or both houses of Congress this fall.

And he’s going to lose the House in all likelihood.

The odds were probably better than 50-50 for a Republican takeover in the House before today’s vote. In yesterday’s Rules Committee hearing to mark up the first of today’s four votes, Republicans were openly and matter-of-factly discussing what will happen when they take back control of the House. The Democrats in the room were full of bluster at virtually everything else GOP members said, but not that assertion. Democrat pollsters and analysts like Pat Caddell and Doug Schoen have been screaming about Nancy Pelosi losing her speakership for weeks. Rasmussen shows the GOP with a 10-point lead in the generic Congressional ballot. Our own John Couvilion here at The Hayride has been making projections of Democrat losses up to 84 seats this fall. John made his first 84-seat projection back on March 4; that was before the ugly conclusion to this process and the campaign fodder it has generated has even intensified public disgust.

Mike Flynn at BigGovernment.com has an excellent analysis today which goes so far as to suggest a 100-seat change in the House. Flynn might be going too far with such a projection, or he might not. He also makes a terrific point in that along with a rough Congressional cycle, the Democrats will endure similar damage in state legislatures – where Congressional districts will be redrawn in advance of the 2012 election.

All of this will present Obamacare with implementation problems that none of the other major social legislation initiatives in American history have had. Just as a few examples – the income tax, Prohibition, Social Security, Medicare and Medicaid were all enacted through bipartisan support and overwhelming favorable votes in Congress.

  • The income tax came into being in its current form with the 16th Amendment, which originated in Congress on July 12, 1909 with a resolution passing by a 314-14 vote with 55 abstentions.
  • In the case of Prohibition, which I include as an example of a federal grab of authority over indivdual liberty which was ulimately repealed, the 18th Amendment put in place the legal authority for it. The Volstead Act, which put it into effect, was passed by a 225-59 vote.
  • Social Security was passed by a 372-33 vote in 1935.
  • Medicare and Medicaid were put in place with overwhelming votes. The Social Security Act of 1965 passed the House by a vote of 307-116 in the House and 70-24 in the Senate.

Obamacare is going to pass, it appears, with a maximum of 225 votes in the House. No more than 40 percent of the American people want it to pass. This is unprecedented, and because it is something completely different from the historical game plan on how to accomplish major expansions of federal power it can’t be analyzed on the same basis. Nobody booed the Speaker of the House the day of those votes, and none of them were conducted amid a sea of protestors on Capitol Hill.

Much of the gloom on the Right about this bill also comes from a lack of faith in the Republican Party as a counter to the Obama clan’s leftward lurch. This is a valid concern; as shown above, those examples of major federal power grabs came with Republican support in every case and the GOP has done shockingly little to roll back entitlement spending on existing programs when they’ve been in power. As shown above, however, the political risk of rolling back past expansions has been something on an order of magnitude greater than this one; Social Security isn’t called the “third rail of American politics” for nothing.

But an entitlement that isn’t popular from the get-go is a different animal, and two realities seem apparent today. First, for better or worse the GOP appears to have hitched its electoral wagon to repealing Obamacare. And second, GOP victories this fall and in 2012 depend almost solely on fusing its traditional voting base with the Tea Party movement; an accomodationist agenda on the part of a new Republican majority will melt that fusion away in mere moments, and Republicans are well aware of it. The coming elections in the Senate, for example, of a Mario Rubio in Florida, Pat Toomey in Pennsylvania and Rob Portman in Ohio, among others, will indicate that the energy and excitement on the Republican side is going to be on behalf of an aggressive, ambitious, small-government agenda and not a Bob Dole big-government-but-not-quite-so-big stance. The pressure to fight is so intense that GOP mandarins are quietly terrified, for good reason, of the rise of a third-party movement if they aren’t seen as sufficiently committed to tearing down the Obamanation currently being crafted in Washington.

But there’s one more reality those who view this bill as a permanent fact of American life aren’t considering. The American people know overwhelmingly that the money simply isn’t there to put an expansion of the entitlement state in place, but the full implications of the current state of the country’s fisc is only just beginning to be felt.

In Greece, Portugal, Italy, Ireland and Spain the reality of a socialist nanny state is coming home to roost on the treasuries and those countries are headed almost inexorably for bankruptcy. In California and New York, the story is the same.

Never before have budgetary concerns held so high a position on the American agenda, and the primacy of budget deficits and unfunded entitlement programs as a national security threat is only going to become more pronounced. The major expansions of federal control over individual life all took place in an environment in which the size of government was not recognized as a tangible threat to the economic life of the country; even in the Depression the size of the federal government was miniscule by today’s standards. And with talk of economic collapse more than just some theoretical, goofy-sounding paranoid exercise, it’s a different game.

So while the passage of this bill, should it happen today, would make for a large increase in the fiscal conservative movement’s workload it is by no means certain that the game will change as a result of 216 votes in favor of Obamacare. Virtually none of the conditions which brought about previous landmark social legislation apply to what’s happening this weekend, and it is not a valid assumption that the trajectory of those initiatives – Prohibition excluded, obviously – will necessary be that of the most recent attempt at centralizing power in Washington.

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