I was thinking what a huge and personal set of changes would result from the passage of the contemplated comprehensive health care reform bill, and how close the vote will be either way. If we dodge it, it will be by the skin of our teeth. And if it’s passed, it will be by the skin of Congress’s.
Many have observed that this is the first time a bill of such scope has been pushed by Congress without the legislation enjoying fairly large—and at least somewhat bipartisan—majorities. The reason is practical; it would ordinarily be political suicide to try to pass a transformative and unpopular (or even only marginally popular) bill. But that is exactly what the Democrats are poised to do—at least, if we believe their rhetoric, which may be mere bombast but which we must take seriously.
Our founding fathers were concerned with the possibility of tyranny of the majority, and they put certain safeguards in our government’s design in an attempt to protect against it. But there’s a limit to what they could do to prevent it if a majority was bound and determined to defy the will of the people. Our government has checks and balances, but in the end it relies on a certain basic agreement and cooperation. Both sides must respect the system in some general way in order for it to function.
For example, I was thinking back to Prohibition, another big piece of legislation (although nowhere near as big as this one) that affected people’s lives in a rather intimate fashion. But the mechanism by which it was passed was a constitutional amendment (the Eighteenth), along with the Volstead Act, through which Congress defined alcoholic beverages. The process by which an amendment is passed is much more difficult, and requires much larger majorities, than a mere act of Congress. So why did they bother?
You might answer that Prohibition had to be done that way because it was a federal ban on what was until then a function only states were allowed to prohibit—the intrastate (as opposed to interstate) sale, manufacture, and transport of liquor for consumption. Previously, many states had already had such a ban, but now it was made national.
But although that is true, it is not the whole answer. For example, in Obamacare there is a nationwide requirement that individuals purchase health insurance or face a penalty. This is unprecedented, and could certainly be considered an unconstitutional overreach by Congress. And yet there is no move to require Congress to pass this sort of bill through the amendment process rather than by the usual path for legislation, and I would hazard a guess that if it were passed and there was a constitutional challenge, the Supreme Court might refuse to hear the case, or be very reluctant to rule against Congress because of the separation of powers.
Congress can contemplate this sort of thing now because they have less fear of the consequences than they did back in 1920, when Prohibition was passed. That’s the big secret the Obama administration and this Congress has discovered (or perhaps rediscovered): if it has the power to do something, why not go for it? If they don’t care about re-election (for whatever reason), and if they don’t fear the Supreme Court—nothing can stop them.