Shall We Be Citizens or Subjects?
· Friday, March 30, 2012
In Washington this week, a rare drama is unfolding in the U.S. Supreme Court. The momentous question that is before the court is this: Shall we be Citizens or Subjects?
The high court is considering a historic challenge by twenty-six states to the Affordable Care Act, otherwise known as ObamaCare. Hundreds of people have stood in line, some of them overnight in the chill March air, to get inside. Our colleague, Ken Klukowski, was one of those fortunate few. We are relying on Ken's reporting and also on the impressions of Virginia Attorney General Ken Cuccinelli.
Ken Klukowski reports what was perhaps the critical exchange in the three-day oral arguments. Justice Anthony Kennedy is widely viewed as the pivotal figure in this case.
His vote is essential to any likely 5-4 ruling. Kennedy mildly said that this health care legislation "changes the relationship of the Federal Government to the individual in a very fundamental way." With this statement, Klukowski hopefully reports, "the individual mandate -- the centerpiece of ObamaCare -- is likely doomed."
We agree, with Ken Klukowski and with Justice Kennedy. It is noteworthy that press reports already capitalize "Federal Government" and lower-case the word individual. The next question, of course, is exactly how will ObamaCare change the relationship of the Federal Government and the individual?
Thomas Jefferson provided the answer. The National Archives announced with some excitement over the Independence Day weekend in 2010 that they had discovered an early draft of the Declaration of Independence. In it, young Mr. Jefferson scratched through the word Subjects and wrote in the word Citizens.
Archivists instructed us on the importance of the change. They invited us to go through that mental process with Thomas Jefferson as he and we became Citizens of a republic for the first time.
Was this amazing event on the nation's birthday a portent? The National Archives made this announcement on the first Fourth of July after the passage of ObamaCare. It's almost as if we were receiving a message from on high. Shall We Be Citizens or Subjects?
Why is this so? America is not like other countries. Ronald Reagan understood why America is exceptional. He offered these words in his Farewell Address to the nation in 1989.
Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: "We the People." "We the people tell the government what to do; it doesn't tell us.But under ObamaCare, government not only tells us, it Mandates. We have seen a great controversy over the first Mandate from HHS . This first HHS Mandate would require religious hospitals, schools, colleges, and institutions provide drugs that can cause abortions, and orders them to further violate their consciences by covering sterilizations and contraceptives.
This is only the first of many Mandates that are coming under ObamaCare. There are literally hundreds of places in this ill-conceived legislation where "the Secretary" determines what is mandated. Life and death decisions for millions will be mandated by an unelected government bureaucrat in a distant city.
Justice Scalia asked Obama administration attorneys: "If the government can do this, what can it not do?" Attorney Mike Carvin represents the National Federation of Independent Businesses, suing the Obama administration. Carvin said: If a person enters the market simply by being born, "that…means they can regulate every human activity from cradle to grave."
Death and taxes. Benjamin Franklin said those were the only certainties on earth. This truth was reaffirmed in the oral arguments before the Supreme Court, as Ken Cuccinelli reports:
Somewhat amusingly, Justice Alito noted that burial costs were expensive and could hit one unexpectedly as well. He further noted that if he was too poor to pay his own costs and hadn't prepared for his burial, he would still certainly be buried, and those costs would in turn be shifted to others either by raising everyone else's burial costs if the buriers had to absorb those costs, or we'd all pay higher taxes if the government bore these costs.Before our liberal readers generously take up a collection for Justice Alito's burial costs, it is time for all of us to step back and consider very carefully the question that is really before the U.S. Supreme Court this week.
If the Supreme Court upholds ObamaCare, columnist George Will notes, then government's "power to compel contractual relations would have no logical stopping point." Which is why, Will says, the case the high court hears this week is "the last exit ramp on the road to unlimited government." Which will it be: Citizens or Subjects?
and here is another:
Obamacare's Day in Court: Good for Single Payer?
Conservatives have spent the last few years falsely characterizing the Affordable Care Act, which preserves the private insurance system, as a "government takeover of health care." Yet during oral arguments, a lead lawyer opposing Obamacare as unconstitutional suggested an actual government takeover of health care might be constitutional.
In an exchange between Justice Sonia Sotomayor and Michael Carvin—a lawyer representing the National Federation of Independent Businesses, which opposes Obamacare—Sotomayor got Carvin to concede that a single-payer system would be constitutional:
JUSTICE SOTOMAYOR: So the—I—I want to understand the choices you're saying Congress has. Congress can tax everybody and set up a public health care system.Justice Ruth Bader Ginsburg had previously attempted to trap former Solicitor General Paul Clement into saying the same thing. "It seems to me you're saying the only way that could be done is if the government does it itself; it can't involve the private market, it can't involve the private insurers," Ginsburg said. "There has to be government takeover. We can't have the insurance industry in it. Is that your position?"
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay?
MR. CARVIN: Yes. Tax power is–
JUSTICE SOTOMAYOR: Okay.
Clement, perhaps flashing forward to a future where he is arguing against the constitutionality of the health care system liberals would prefer to the private sector alternative they actually got passed, refused to be cornered. "No. I don't think it is, Justice Ginsburg. I think there are other options that are available."
Justice Anthony Kennedy wondered aloud whether the ability of the government to set up a single-payer system meant that the Affordable Care Act was constitutional. "Let's assume that it could use the tax power to raise revenue and to just have a national health service, single payer," Kennedy said. "In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power."
"On the other hand," he mused, "it means that since…Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes." If the Affordable Care Act gets struck down in its entirety, however, single payer may be the only alternative left for liberals, as monumentally difficult as it would be to get it passed. And though some conservatives—as they assail Obama's health care reform—now concede such a plan would be constitutional, no doubt the right can be expected to argue the opposite should single-payer ever become a viable alternative to Obamacare.