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My Prez, my Prez, why hast thou forsaken us?

The Health Care debacle and a question of federalism

March 2010

Where is the Barack Obama who railed against pork barrel spending?  Who proudly told us he wouldn't sign any bill with "earmarks."  Where is the Barack Obama who held forth against irresponsible Republican budget deficits and out-of-control public debt?
The disaster that passed for "legislating" in Congress over the past few months – I refer to the "Health Care Reform" bill – and the collusion in this of the President of the United States, deserves our scorn.

Sixteen months ago, Mr. Obama got my vote, though reluctantly.  Reluctantly, because he had by no means the experience with leadership that we should demand of a President.  In fact, he – like Hillary Clinton – had no significant leadership experience.  And "reluctantly" because his imperious, "above-us-all" attitude was, in my opinion, ill-suited for the presidency of a democracy.  He evidently thought his style to be admirably suited to the presidency, but he evidently also thought that the President need merely let his wishes be known, whereupon his party in Congress would see to it.  (He has adopted a bearing that has something of De Gaulle in it, frankly carrying his chin a little too high.)  Of course he has learned, over the past year, that the President is only one of the power players in Washington.  And that the other power players need their strokes.  That's why "power players" are what they are.  The desire for fame and recognition, and if possible admiration, has driven them all to Washington.

So Mr. Obama discovered that the idealism he proffered in the election campaign doesn't work in real life.  Remember how he was positively livid over "earmarks," the pork barrel home-state projects for which a congressman sells his vote?  He would see to it, he promised, that a stop was put to this practice.  He would not sign a bill with pork!  On precisely this point there would be Change! "Change we can believe in!" Fast-forward to March 13, 2010, and the picture of a smiling Obama signing the biggest pork handouts in years.  I would like you, Mr. President, to face the nation and tell us what went wrong with the ideals you used so eloquently to sell yourself to the American people.  Did you really not understand, after two years in the Senate, that you have to pay for votes in Congress, just as in other elections?  Or were you just fooling us?  Just kidding about your outrage?  Savvy enough to have known all along that the promises you were making so emotionally – shall I say, so populistically – were so much hot air, intended to deceive the hapless voter?  Yes, that's a cynical interpretation of your apparently sudden conversion to realpolitik, but what else to believe?  Could you possibly have been as refreshingly naïve as you gave yourself out to be?

The disgusting process that masqueraded as "legislating" on this issue over the past year illustrates the complete bankruptcy of democratic principles in Congress.  If there still are citizens in the U.S. who might have thought that legislation represents reasoned compromise among the representatives sent to Congress from all across the country, they should now have been thoroughly disillusioned.  Legislating in Congress has sunk (as many times before) to the level of pure power play.  Both parties, this time, showed their worst side – the same side, by the way, and it may be the only side they have left.  The Democrats, relying on their control of both houses, decided that the health care reform bill would be a Democratic bill.  No need to consult with the Republicans, who represent nearly half of the U.S. population.  The President, who had made much of his supposed ability and intention to bring people together, wholeheartedly supported the plan to leave all the Republicans out of the legislative process. (You recall that Obama's pledge to end divisiveness in Washington was one of the "Changes we could believe in" – ironically echoing then-candidate George W. Bush from the election of 2000, who similarly promised to end bickering in Congress with his slogan, "I'm a uniter, not a divider!" – how much more such nonsense can we believe in?)  The Republicans, for their part, being cut out of the process, resorted to obstructionism with threats of filibuster.  I don't put it past the Democrats to have intended all along to force the Republicans into this position, in order to support their "party of NO" label in the upcoming election.

So that's democracy at work in Congress in the guise of party power politics.  You may want to read an earlier BRJ essay which concludes that political parties, which certainly have their place outside our government structure, have no place inside it, as for instance in Congress.

We have, in the end (though it's not the end, as we shall see), a health care law that is not what Mr. Obama or anyone else claims to have wanted.  It sprays public money that we don't have – financed by growing debt payable by our children – into Democratic lawmakers' re-election projects across the land.  It evidently employs a kind of double-bookkeeping to convince us that the Act is not inflationary and will not increase budget deficits (Obama claimed, in a bald-faced bit of balderdash, that the bill would decrease deficits), while it appears, in fact, that support is reduced for Medicare, hastening that program's crash into insolvency.  Quite apart from what this law may achieve in the way of health care reform, it appears to be financially irresponsible, and potentially financially disastrous.

I conclude with a note about the separation-of-power implications of this law, an issue that was barely mentioned in public discussion during the past year.  Up through Franklin Roosevelt's first term (1937), the Supreme Court had been reluctant to permit "power grabs" by Congress:  the Court struck down a number of laws (including quite a few of FDR's new programs) as being unconstitutional on the grounds of Congress intruding on the constitutional power of the states in violation of the ninth and tenth amendments (as well as the related separation-of-power issue of Congress improperly delegating its legislative functions to departments of the Executive branch).  But early in FDR's second term in 1937 (shortly after he introduced legislation to "pack the court" with more justices), the Supreme Court did an about-face.  It really involved a change of heart of only one justice – Owen J. Roberts – but that was enough to cause a revolution in the Court's view of separation-of-power issues.  From then to the 1990's, there was a continual increase in the power of the federal government vis-à-vis the states.  This power shift has flowed in a consistent pattern:  First from the states to Congress, by the Supreme Court letting stand provisions of law that previously might have been held to infringe on constitutional state rights, then from Congress to the Executive, by Congress delegating rule-making authority (a kind of legislative function) to federal departments, and finally to the Court itself, as it now finds itself with a level of detailed oversight authority over the rulemaking of federal departments that it would not have over legislation by Congress.

While the Rehnquist court in the 1990's tended to be more "federalist" in their approach, i.e., to preserve to a degree the authority of the states, they recognized that the "modern administrative state" requires more centralized authority than was envisioned in the 1780's.  Now, the interesting question is what the Roberts court will do.  To date, thirteen states have filed suit charging that in the Health Care law Congress has improperly arrogated to itself authority that is reserved by the Constitution to the states.  Specifically, Congress had depended on its authority to regulate interstate commerce, to require all U.S. residents to buy health insurance.  But, says the suit, this amounts to Congress requiring persons to engage in interstate commerce, who would not otherwise be so engaged.  So the authority of Congress to regulate their activity does not apply until after they have entered into interstate commerce, it does not include authority to require them to do so.

The suit was filed in federal court in Pensacola, Florida, within minutes of President Obama signing the Health Care act.  It will certainly wind up at the Supreme Court, and it will be highly interesting to see what the Roberts court does.  Or rather, what the five "conservative" members do.  Remember them?  Remember them squirming and fuming where they sat directly in front of the President at the State of the Union address just a couple of months ago?  Remember the scathing insult, the public humiliation literally in front of the eyes of the world, directed at those five by Obama?  Now, I happen to agree, technically, with Obama's criticism of the Court on the specific point he made, but how smart was that?

And now, here's Obama's prize achievement, his partisan law, coming before those five; with arguments about congressional overstepping (read: "liberal arrogance") that may or may not have merit, but that five conservative justices with a grudge could easily learn to love.  I say again:  How smart was that?  Eh?

© 2010 H. Paul Lillebo

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