February 27th, 2010

Health care reform, Prohibition: legislation vs. constitutional amendment

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.

Audacity, indeed.

24 Responses to “Health care reform, Prohibition: legislation vs. constitutional amendment”

  1. Wolla Dalbo Says:

    I believe this piece in NRO online explains why this push to pass a manifestly unpopular bill is happening, and why it will continue (http://corner.nationalreview.com/post/?q=NmQyOTI5NzNkMmMxY2IyYThhMjBmNjhkOWQ2MTY5YjE=).

  2. betsybounds Says:

    I saw the McCarthy piece also, earlier today, and found it persuasive. It certainly explains why these wizards might not care that the American people are against what they’re doing. I had earlier considered the possibility that they might be planning some interruption of our election cycle. If McCarthy’s right, I think this qualifies as a revolution. We all, here, go back and forth about whether they can be stopped and whether or not we’re looking at a seizure of power. Some think we are; others think not. I tend towards the former view, although I remain hopeful that I’m wrong. If they manage to pull this off, our country will have been changed fundamentally, for the worse, and I fear irretrievably. I believe all bets will be off as to where we go from there. Obama promised nothing less than transformation. Well, look out, here she comes, she’s comin’; look out, there she goes, she’s gone (HT: Guy Clark). It’s over a year into it now, and some folks take this as a sign of Obama’s and the Democrats’ weakness and impotence. It may be more correctly interpreted as a sign of their determination. They will not allow themselves to be stopped. Again, at the risk of becoming tedious, I think of the German sub captain in The Enemy Below. They run up against deterrence or apparent defeat, and they regroup and move right back onto the same course. They drop nothing. They change nothing. They detour a bit, and then Bingo! It’s back to Plan A, the destination unchanged.


  3. Tom Says:

    That Congress “has less fear” means they have less fear of us, the People, as they cram crap down our throats and wantonly mortgage the future of several generations. Hubris of such megalomaniac proportions will ultimately generate violence, of them against us or us against them. I prefer the latter. That is why an American Pinochet is needed.

  4. expat Says:

    I haven’t read the original article in the Frankfurter Allgemeine Zeitung, but apparently Merkel is now saying that a major reform of the health care system is necessary in Germany. I can’t believe that the Obama/Pelosi/Reed types have paid any attention to the problems other systems are having due to demographic changes. They have a utopian view if the world and they try to spread that view as if it were reality. The best thing we can do is to point out the cracks in their vision based on hard analysis of other systems. I hope that after this year’s elections, new representative will be able to repeal some of the Dem’s idiotic legislation.

  5. betsybounds Says:


    I think the better option–and maybe, in true life, the only option–is to stop it now. Kill it before it multiplies. Cap-and-trade is waiting in the wings, remember. Maybe they aim to just tire the opposition out.

    And don’t forget the executive branch regulations and other (czar-driven?) bureaucratic measures they’re preparing. This is transformation on steroids.

  6. betsybounds Says:

    And anyone who hopes that these measures will not survive judicial challenges isn’t paying attention to the appellate court appointments Obama is making. For example: (That’s html title experiment–hope it works!)

  7. betsybounds Says:

    Nope, didn’t work. Well, try this: http://tinyurl.com/yg5kb7h

  8. holmes Says:

    We went from having to pass a constitutional amendment for prohibition, to raising the drinking age to 21 through the National Minimum Drinking Age Act ( http://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act ) which used the coersion of Federal funding against the states. Federalism is dead.

  9. Universal Health Care | Car Insurance For Young Drivers Richardson Says:

    [...] neo-neocon » Blog Archive » Health care reform, Prohibition … [...]

  10. rickl Says:

    That NRO article sure is depressing.

    The Left really is trying to instigate a civil war in America. They’re leaving us no choice. Maybe that has been their plan all along.

  11. br549 Says:

    Like betsybounds, I, too, hope to be proven wrong in the beliefs I have, of the places these people would have us go.

    I am reminded of a King Crimson tune from 1970 or so: “If we make it, we can all sit back and laugh. But I fear tomorrow I’ll be crying.”

  12. betsybounds Says:


    I don’t think they’re trying to instigate a civil war–although I wouldn’t entirely rule such an effort out, either. But I think their great hope is that we rubes won’t bother to fight.

    They are of course leaving us no choice, although they may not know that. They think just that little of us.

  13. betsybounds Says:

    But we will fight, of course.

    What will they do with us then?

  14. Tom Says:

    Why, betsy, Obama welcomes another 9/11, and may well be consciously enabling such event. Not only will that cream what remains of our economy, he will get to declare martial law with ‘suspension’ of habeas corpus and the Bill of Rights generally, indefinite detention, internet control, etc. That’s what they’ll do with us then.

    The question is what our armed forces will do in response. That’s why i’ve said we need an American Pinochet.

  15. rickl Says:

    Yes, Tom, I agree. We need an American Pinochet.

    It really has come to that.

  16. cbyoungblood Says:

    “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.”

    This legislation, if passed, will be no different than McCain-Feingold in terms of how the Court will look at it, though it is far more damaging. The Court is unlikely to refuse to hear the case since it only takes 4 votes to choose to hear it and the 4 originalists will likely vote to do so. And to rule on the constitutionality of legislation as it pertains to the harm of citizens who bring a case before them is not a violation of separation of powers, it is their job. They overturned parts of M-F, they will hopefully do the same here it it comes to pass.

  17. Oblio Says:

    Another Sick Chicken Case, in fact.

  18. betsybounds Says:


    Yes. Well. My husband is a Jarhead. He has been saying for some time now (and I’ve mentioned it here, and very occasionally elsewhere) that one of the things we need to consider is whether or not American soldiers would obey an order to fire upon American citizens. We don’t prefer to think it may come to that.

    But it may.

  19. betsybounds Says:


    I’d have to do some research to refresh myself on the matter, but the Founders had some arguments over whether we were in the end setting ourselves up for judicial tyranny via judicial review. I don’t know the answer, but the question needs some attenntion.

  20. Auto-Tune the News #9: Nobel. health care. United Nations. Says:

    [...] neo-neocon » Blog Archive » Health care reform, Prohibition … [...]

  21. Obloodyhell Says:

    > 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.

    I don’t see that at all. This is clearly what the whole purpose of judicial review is all about. And the “checks and balances” aspect of things applies at least as much as separation of powers. I believe this is also considered one of the challenges that Obamacare faces, in fact: that mandate may well be determined to be unConstitutional.

    Further, I believe the public mood will be such that the Judicial branch may well decide that it was a blatant overreach of Congress to pass the law in the face of such objection from the people — a violation of the spirit of the system, if not a violation of the letter. As such, they strike me as MORE likely to consider the implications rather than less.

    I think they’ll approach it on a neutral, reasoned approach, but it’ll be approached, nonetheless.

    If there’s any argument against their dealing with it, it will be far more closely tied to the conservative disdain for legislating from the bench.

  22. Obloodyhell Says:

    > The Left really is trying to instigate a civil war in America. They’re leaving us no choice. Maybe that has been their plan all along.

    Geez, am I the *only* person who read this:

    Barack Obama and the Strategy of Manufactured Crisis

    or this:

    Barack Obama and Alinsky’s Rules for Psychopaths


  23. neo-neocon Says:

    Obloodyhell, et. al: re judicial review. I understand and agree that that’s what judicial review is all about. But I have read a couple of articles (a while back; can’t find the links, and don’t recall where they were) that said that the trend of recent Supreme Courts has been to avoid making decisions that pit them directly against Congress, in ways that they might have done earlier. I don’t know whether this is true. For example, the SCOTUS Citizens United decision did overturn part of an act of Congress, and a rather important one at that (and note the public tonguelashing they got from Obama for it). But health care reform is much larger and much more important, and I don’t know whether this Court would have the guts to tackle it. I will look for those links and put them up if I can find them.

  24. neo-neocon Says:

    About a constitutional challenge: I did another quick look and found this, for example (not the original article I had read—the original one was longer and better). But here’s an excerpt of the sort of thing I mean:

    Although opponents will challenge the individual mandate in court, constitutional challenges are unlikely to succeed. The Supreme Court will probably not even consider the issue unless a federal court of appeals strikes the tax down. In that unlikely event, the Supreme Court will almost certainly uphold the tax, at least if it follows existing law. To strike down the individual mandate, it would have to reject decades of precedents. It is very unlikely that there are five votes on the current Court for staging such a constitutional revolution.

    There’s also this. There are indeed tons of articles (by liberals, no doubt) saying that of course the law would be found constitutional, but whether they are correct and this would be the actual decision of the current SCOTUS I haven’t a clue (nor do they, I’d wager). There are also legal scholars (such as someone named Jack Balkin, a con law professor at Yale Law School, quoted here) who say the Supreme Court is unlikely to even take the case.

    However, as I said, the larger question of which cases the current Court decides or declines to hear was the subject of some relevant articles that I’m unable to find right now.

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