Yes, yes, says White House Press Secretary Robert Gibbs. Congress has the power to make everyone buy health insurance. "I don't believe there's a lot of case law that would demonstrate the veracity" of comments to the contrary.
Thank you, Mr. Justice Gibbs. We'll see about all that when -- if -- the matter of Congress' power over private commercial judgments of this nature gets to the U.S. Supreme Court.
Meanwhile the knock-down, drag-out over health insurance "reform" shouldn't be allowed to fuzz up another immensely vital question; to wit, how in James Madison's name have we reached the point that Congress can so much as contemplate telling you, and you, and you, and all of us that we'll buy health insurance, like it or not, Buster? Why do we have to? Because the government says so, isn't that reason enough?
For Mr. Justice Gibbs, and the people who employ him, it is. Just about anything Congress decides to do in the name of uplift seems to be constitutional: In other words, in accord with written stipulations as to what the national government may and may not do.
Several problems arise concerning this fine theory:
-- It's nonsense. It contravenes the whole constitutional concept of divided powers: particular functions reserved to particular branches of government. And other powers divided between states and the national government.
-- It threatens liberty. A government that knows no limits to its power can be counted on to step more and more heavily on citizens' rights and privileges. All for the "general good" naturally!
-- It divides the citizens. On the one hand, those who want particular favors from government; on the other hand, those who deny that government has the right to dispense such favors.
The Obama administration, which desperately wants health care to pass, brushes off such concerns as cranky and relevant mainly to wild-eyed Limbaugh and Palin fans, when in fact concerns about the rightful exercise of government power should inform every legislative debate. Those it doesn't inform are likely to end badly.
Majority support of this or that initiative doesn't legitimize the initiative. Wise or foolish, the thing can't be done at all if doing it isn't within the competency of the body making the effort. And that's never mind how many people favor it.
Naturally, reasonable people can disagree about the meaning of prohibitions or permissions written by men long dead. Can we have an Air Force if the Constitution doesn't mention it? What does it mean, "equal protection of the laws"? Is there truly a right to "privacy"? We can argue such questions until the cows come home. Why not, then, some attention to the varied questions arising in the context of health insurance reform? To hear President Obama or Nancy Pelosi or Sen. Harry Reid, you'd imagine a big "Why, sure" succeeds the question, "Can the U.S. government run U.S. health care"? (It runs General Motors, doesn't it? And a lot else since the financial mess began?)
The power to regulate commerce is the power most often invoked in support of the government's right to tell you how and where you can get your health insurance. It's a familiar if feeble stretch of the reasoning powers. Everything under the sun can be seen as affecting interstate commerce: a sneeze, as affecting Kleenex sales; what to order for lunch, if the plastic on the menus reached the restaurant via a truck on a federal highway.
Sure, on those terms, the government can make us buy health insurance. It can make us do anything it wants. That it hasn't, so far, means only it hasn't agreed on every idea designed to convert a free people into a nation of sheep, lolling in pastures supervised thoughtfully by agents of the government.
The health care debate is monumentally important on all possible grounds: not least on the question of what happens if Congress gets away with ordering the American people to buy health insurance -- and if the American people knuckle under. Yes, what next for us, comrades?