One of the biggest political changes that 2011 brought — in large part due to the tea parties and their effect on the 2010 election — is the centrality of the Constitution to our public discourse. Lawmakers and citizens no longer consider simply whether a given bill or policy proposal is a good idea but whether it is constitutional. “Where does the government get the power to do that?” is often critics’ rallying cry.
That’s a healthy development. For far too long, even in those rare moments when politicians were faced with constitutional concerns, they’ve had the attitude Nancy Pelosi did when asked about the authority for Obamacare’s individual mandate: “Are you serious?” Because, of course, constitutional arguments are the last refuge of the scoundrel who has no good policy arguments to make or political power to levy.
And so it’s a good thing that Americans are taking their founding document seriously. After all, the Constitution is the font of all federal power. Its carefully crafted structural provisions that we learned about in grade school, such as the separation of powers and checks and balances, are not merely an application of political theory.
“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” Justice Anthony Kennedy wrote for a unanimous Supreme Court earlier this year. “By denying any one government complete jurisdiction over all the concerns of public life,” Kennedy continued, “federalism protects the liberty of the individual from arbitrary power.” If the federal government acts outside the scope of its delegated and carefully enumerated powers, then it’s no better than an armed mob.
The Obama administration and its allies in Congress have perpetrated more than their share of such mob-like actions. While it’s hard to narrow them down, here’s my stab at the government’s top 10 constitutional violations since President Obama took office.
1. The individual mandate
No list of President Obama’s constitutional violations would be complete without including the requirement that every American purchase health insurance, on penalty of civil fine. The individual mandate is unprecedented and exceeds Congress’s power to regulate interstate commerce. If it is allowed to stand, Congress will be able to impose any kind of economic mandate as part of any kind of national regulatory scheme. Fortunately, the Supreme Court has a chance to strike this down during its current term.
2. Medicaid coercion
The Court will also be taking up Obamacare’s massive intrusion on federal-state relations in the form of a coercive Medicaid expansion. The law compels states to drastically increase their Medicaid expenditures and reorganize their health care bureaucracies, on penalty of losing all (not just additional) Medicaid funds. No state contemplated such a program when it signed onto Medicaid — Arizona was the last to join, in 1982 — and now no state can afford to withdraw. Indeed, even if some withdrawal mechanism existed, withdrawn states’ taxpayers would still be funding complying states’ Medicaid programs. As the Supreme Court held in South Dakota v. Dole, there comes a point when “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.”