Conservative David Frum - "Health reform: Unwise, not unconstitutional" - Critiques Jim Demint

[TomCADem]

The odd thing is that this right wing constitutional attack has been promoted by certain posters on DU without any thought to the potential consequences of such an attack. If successful, what's to stop conservatives from attacking social security or Medicare? Do we really want to invite a Supreme Court with a right wing majority to revisit these issues? Yet, there are some folks who would push a constitutional argument that is even ridiculed by conservatives like David Frum, but embraced by folks like Jim Demint.

http://www.theweek.com/bullpen/column/104493/Health_reform_Unwise_not_unconstitutional

Is the Obama-Reid health reform plan unconstitutional?

The answer to that should be obvious: the Reid-Obama plan may be unwise, unsound, and unaffordable ... but it is unquestionably constitutional.

The federal government already requires every American to purchase health insurance. That's what Medicare does. The difference now is that everyone will be required to buy a private plan to cover them up to age 65 in addition to the government-run plan they are compelled to buy to cover them after 65.

I don’t hear anyone in Congress suggesting that Medicare violates the Constitution. So how can the new plan be unconstitutional if the old plan is OK?

Yet two Republican senators — Jim DeMint of South Carolina and John Ensign of Nevada — are arguing the opposite, and will try to force a to vote on that question.

To what end? The Ensign-DeMint exercise will not stop the Reid-Obama plan. Nor will it much impress the courts. Since the challenges to Social Security were rejected by the Supreme Court in 1937, the courts have consistently held that the general welfare clause of the Constitution empowers Congress to create social welfare plans based on compulsory contribution. (Helvering v. Davis is the most relevant case.)

Precisely because of the vote's futility, many Republican senators may perceive it as a base-pandering freebie and cast a posturing "aye."

Yet this seemingly free vote may have costly consequences.

DeMint's and Ensign's argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do. Since (for example) the Constitution speaks only of a Supreme Court, Congress has no power to create lower federal courts. Since the Constitution does not mention a national bank, Congress may not charter banks.

The theory exerted a lively influence upon the politics of the 1790s, when it was enthusiastically promoted by the party led by James Madison and Thomas Jefferson. The heart went out of the theory in 1805, when then President Jefferson purchased Louisiana from the French in 1805. The Constitution had said nothing about THAT either.

The Civil War finished off the theory for all practical political purposes. Since 1865, the doctrine of enumerated power has subsisted at the remote margins of American politics. Are Republicans proposing now to resurrect the constitutional theories of Roger Taney?

[subterranean]

1. I'm not sure his point about Medicare is correct.

Correct me if I'm wrong, but you can "opt out" of Medicare by simply not enrolling after you reach 65. Most people do, of course, but if, for example, someone is ideologically opposed to government health insurance, and would rather pay out of pocket for everything, they would not be forced to sign up for Medicare.