Commentary
Health care law shows why we need courts to guard against government overreach
by Katelynn McBrideKatelynn McBride is an attorney with the Institute for Justice Minnesota Chapter.
Health care reform's sordid journey through Congress in early 2010 is a sobering reminder of why the Framers both limited and divided the power of government.
The House and Senate votes were divided along strictly partisan lines. Not a single Republican voted for the law when it finally passed, and the last Democratic votes were bought with backroom deals granting special favors in the form of billions of extra federal Medicaid dollars to the few states lucky enough to have senators holding out.
It does not appear that the supporters of health care reform gave any serious consideration to the law's constitutionality, a question that is scheduled for three days of argument before the U.S. Supreme Court next week. The unseemly process by which the law was enacted, and the apparent failure to consider its profound constitutional concerns, are precisely why we need an engaged judiciary to review and, when necessary, check the power of the Legislature.
The realization that Congress had passed a law stuffed with mandates and unwelcome surprises has been dawning ever since it was enacted. These requirements run the gamut from perplexingly trivial (such as a 10 percent tax on indoor tanning salons) to serious infringements of personal and religious liberty (like forcing private employers, including the Catholic Church, to pay for birth control).
One might think the legislative process would be at its most deliberative when considering a bill that would fundamentally alter the American health care system and institute one of the most expensive programs in our nation's history. The Congressional Budget Office (CBO) estimates that health care reform will cost $1.76 trillion over just the first 10 years, nearly twice the CBO's original $900 billion estimate, with much of that cost falling to the states.
If only we could have anticipated that our legislative system would be at its most dysfunctional precisely at our time of greatest need. If only we could have known that Congress was capable of passing such a costly, expansive and intrusive law with so little deliberation regarding its content or constitutionality.
But we did know.
We have known about the inherent defects of our legislative system since before the U.S. Constitution was even signed. James Madison, one of its primary drafters, famously stated, "If angels were to govern men, neither external nor internal controls on government would be necessary." The Constitution was written with the knowledge that men are not angels and that the legislature must be checked by a properly engaged judiciary to counteract the forbidden impulses of those whose natural inclination is to expand the power of government, not restrict it to constitutional limits.
The Constitution was designed to prevent runaway government like we have today and to account for the fact that, as Thomas Jefferson warned, "The natural progress of things is for liberty to yield and government to gain ground." The Framers knew perfectly well that legislatures are not inclined to recognize limits on their own authority.
When they do not, it is the job of the courts to enforce the Constitution. Increasingly, however, courts are not doing that job. A study by the Institute for Justice last fall found that the Supreme Court struck down just two-thirds of 1 percent of federal laws enacted between 1954 and 2002.
Legislative and executive overreaching and judicial abdication have transformed the Constitution from a charter of liberty into a source of virtually limitless government power. We need judges who will protect our right to limited government.
When the Supreme Court hears oral arguments on the constitutionality of health care reform next week, the justices should remember that limited government and individual liberty are two sides of the same coin. The people of Minnesota don't need or want public policy solutions imposed on them by elites in Washington; the Constitution was designed to prevent that from happening. But without a properly engaged judiciary to enforce them, constitutional limits on government power are nothing but a parchment barrier.
Comments (12)
Spoken like a true Libertarian Ms. McBride. The Health Care Reform Act isn't perfect but at least it's something to help bring down costs and make it more affordable. Personanlly, I'm for socialized medecine. Also, you said, "we need judges to who will protect our right to limited government ." Really! How about judges that protect us from the unlimited power of corporations? Citizens United? all that was was corporations united! There are those Washington elites, as you mentioned. There are also the corporate elites. Who are you? An attorney for The Institute for Justice? Who's justice. Why do so many hide behind names? You are a Libertarian organization. Oh, is everyone supposed to automatically know that? We shouldn't have to search what or who the Institute for Justice stands for. Wish I had more time to comment on some of the other points you mentioned but I would need a little more time for research. Like most data, you can make it say what you wish. Especially when talking about the framers of our constitution.
It does not require that one be a "libertarian" to be against a law that intrudes the Federal Government into the most private and intimate parts of our lives -- our care of our own bodies. Never before has Congress passed a law remotely as intrusive as Obamacare. Essentially Obamacare forces citizens to engage in an activity (health care insurance) so that Congress can then regulate that activity. If Congress can do this, that ends the principle that the Federal Government is a Government of limited, enumerated powers. This is unconstitutional on its face.
Peter Frank--protecting our rights to a limited government WILL protect us from power from corruption. Big Business can't be big on its own. It's big and powerful and corrupt because it is in bed with the government. What Ms. McBride is saying is on point. We can't allow Obamacare or any other socialized medicine to pass. Obama has no right to just implement something like this without a vote! The people do not want this! You think medical care is expensive now, just wait until its free! Because nothing is ever free! Someone always pays for it. In the end, it will be the tax payers, our children, grandchildren and their children. Furthermore, it is unconstitutional to require Americans to purchase ANYTHING! If the courts would do their jobs correctly, they would overturn this, back the citizens, put our rights above special interests and profit, not the politicians, Big Pharma and anyone else that stands to benefit from this illegal burden! The people are supposed to be in charge, not the government. Too much power corrupts! Its starts at the top and Obama is at that top. Most to the left and the right of him in office are also corrupt! The government is supposed to serve, not dictate and not mandate something that goes against your religious beliefs. If you want socialized medicine, go to Canada! Good luck while you wait in line to see a doctor!
the three branches of government had a great purpose,until the presidents started ruling with executive orders. Hitler ruled by executive orders. We are a nation that is ruled by laws not presidential orders we need a president that will defend the constitution, our laws,and our borders. We will see what the supreme court is made of, and if they have been bought out.
That is the beauty of Libertarian philosophy Mr. Frank. You are free to set up socialized medicine at a local or state level if the majority or residents agree to it, but you cannot force someone into socialized medicine against their will. To take a note from your comment; "Like most data, you can make it say what you wish." is very revealing considering your comment in the same paragraph, "at least it's something to help bring down costs and make it more affordable." I find it hard to believe that you truly believe those two assertions Mr. Frank, especially considering the CBO's latest pronouncement of costs for ObamaCare.
The paternalism of the politicians and activist judges. left and right, who make and enforce these laws that violate our fundamental right to exclusively decide about our own lives and property is throwing us back to the times of King George III. We're dumb peasants to these elitist. These laws, especially Obamacare, show the low esteem these 'self-proclaimed rulers' have for us citizens. Like we are not qualified to judge quality and price and make our own contracts with our health care insurers and providers. This is also how they talk about us in closed quarters. Peter Frank's reaction shows it best. He wants to protect us against our own best judgment. I hope the US Supreme Court will still consider us grown up enough to decide on our own. If they do not, we will all effectively have been 'committed' without being insane.
Right, the problem with providing healthcare is not providing healthcare. There's no way this country can afford to keep everyone alive until the last possible moment or unharmed despite whatever they smoked or got run over by. However healthcare is provided, whoever made the choice gets the credit for all of us dying and most of us getting crippled.
The only way out of the gerontocracy trap is to simultaneously offer Medicare for all. You can't reform Medicare because to do so is an attach on seniors, which they will fight. You can't means test Medicare because middle class seniors (the ones who vote the most) know that they will be paying more. But if you offer Medicare to all, reform is absolutely essential, and it will be harder for the seniors to argue about means testing when the young are paying 80% of the premiums and the old are taking 80% of the services.
So if you are a conservative, you start by offering Medicare to all. You make the annual dues for young people astronomical for the full plan, so you offer them cheaper versions of Medicare which are not fee-for-service, or high deductible and co-pay, and/or run through private insurers. Then you tell the seniors that they have to move to the cheaper versions of Medicare if they want to avoid fees, fees which are means tested. This will take a decade or more, but if we don't pursue a path like this, the politics become impossible.
The takeaway lesson is that you can't privatize or otherwise reform Medicare unless you make it universal, first.
OK, what is the real problem? Insurance companies are there for one reason only. Insurance companies are there to make money. Period.
If your grandmother is sick an insurance company is "praying" she will die. The sooner she dies the less money they have to pay out. Insurance companies do not want to spend money on health care. Period.
Romney/Obama Care is about paying for medical care. Insurance companies are about making money. Blunt. True.
Katelynn McBride, these days even in the USA the worlds only bastion of individual liberty, you find few people that can actually hear what you are saying.
You are dealing with an entire generation pampered from cradle to grave that never knew hardship. They have a sense of entitlement similar to that of a spoiled child.
I just wish the socialist tide could be turned in a calm and civilised manner but while the economy is tanking the pendulum swinging towards socialism is gaining momentum. I can 't help but fear that this won't end well.
Bravo Allison! Yes, it's the evil empire, health INSURANCE that we FEAR. I, like thousands of other hard working Americans, paid thousands for health insurance - over $150,000 to Health Partners and Humana. Yet, when I was bit by a dog the bill was $2000 and insurance paid only $164 AND raised my premium 147%. Thank God I could get out of this country's largest ponzi. The money I would have wasted has instead paid for an eye exam and dental care - 2 parts of the body not included in health insurance unless you pay extra and good luck collecting. I am rebuilding a health care account that was ransacked for health insurance. Never again - I'll pay the fine/tax. Health Care YES! Health insurance managed by million-dollar insurance industry execs NO! I would rather deal with mid-pay govt. professionals (like Germany) paying a fine/tax and actually receive health care when I need it!
Who protects us against Courts that do not do their duty to obey the Constitution, Bill of Rights, Declaration of Independance and all the founding fathers documents? The people. Particularly the Juror's, please support your country by becoming a knowledgable jurist and donate your time. Our country is worth it! Read the "Juror's Handbook" to know your rights. The Jury can/does control the courtroom, not the judge. We must protect our people, this is not Rome -Quit throwing Christians to the Lions. We must fix our broken out of control judicial system.
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