Will the GOP Ever Admit Healthcare Reform is Constitutional?

Nov 10 2011 Published by under Uncategorized

Republicans have been working against what they call Obamacare – more properly known as the Affordable Care Act or ACA – since 2008. The Republican Party and base hate the idea of anyone outside of rich people having healthcare and against anyone but senators and representatives having socialized healthcare. It makes no sense on logical grounds but conservatism isn’t about what makes sense; it’s not about reality or our interactions with it. It is all about ideology.

Time and again efforts to have healthcare reform struck down in courts have failed. As AmericanProgress reported in January, “Nearly three dozen judges have now considered challenges to the landmark Affordable Care Act and the overwhelming majority of these cases have been dismissed. “

You’d think that would tell conservatives something about their chances, but they keep trying with dogged if Philistine obstinacy (all due apologies to the dear departed Philistines) to ram their heads through a brick wall.

The most recent attempt may be the most damning of all, because it comes from a conservative judge. Republicans had a right to feel confident going in, when the case was to be heard by the United States Court of Appeals for the D.C. Circuit. After all, two of the three judges on the panel were conservatives: Laurence Silberman and Brett Kavanaugh.

As ThinkProgress reported:

Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.

So what went wrong?

Well, reality in point of fact. The conservative challenge was, in the vernacular, bullshit. In legal terms, it was what they term “meritless.” It amounts to the same thing. According to Judge Silberman:

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming Wickard doesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. […]

That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

This is a damning answer to Republican claims. But is anybody listening?

Jessica Pieklo writes on Care2:

What is deceptively brilliant about Silberman’s opinion is that it returns common sense to a conservative read of the Constitution and to the understanding of the interplay between individual liberty and the necessary functions of governments. That today’s conservative movement won’t be able to see that, or are politically unable to concede such a point, shows just how intellectually bankrupt the movement has become.

She is entirely right. Every 2012 Republican candidate has made abolition of the Affordable Care Act a cornerstone of their campaign.

Huffington Post has helpfully collected some of their promises:

ROMNEY: “One thing I’d do on Day One if I’m elected president is direct my secretary of health and human services to put an executive order granting a waiver from Obamacare to all 50 states. It is bad law. It will not work. And I’ll get that done on Day One.” – Claim in Sept. 7 debate, which he echoed in most other debates.

PERRY: “And I’ll promise you, on Day One, as the president of the United States, that executive order will be signed and Obamacare will be wiped out as much as it can be.” – Sept. 7 debate.

CAIN: “I’m going to un-pass it on my son’s birthday.” – Nov. 2 forum with the GOP’s Congressional Health Care Caucus.

It should be clear by now that they have little or no chance of actually accomplishing their avowed goal but the message still sings to the conservative base who have become convinced that they’re better off sick and dying than cared for and that they are well rid of the rest of us, and the sooner the better. This is not hyperbole; it is evident in their every word and deed.

Huffington Post put it very well last week:

To hear some Republican presidential candidates tell it, the president’s pen is a magic wand that can make “Obamacare” vanish in one day and sweep in cheaper health care, economic growth and lots of jobs in businesses freed from the health care law’s heavy hand.

As HuffPo writers Calvin Woodward and Ricardo Alonso-Zalvidar point out, “there is no such fairy dust in Washington.”

But do Republicans know that? It’s important to make a distinction here between the candidates and the base.  The Republicans who want to be nominated in the Republican primary may and the base certainly wants desperately to believe such fairy dust exists. So the dance goes on just as Adolf Hitler’s and the German peoples’ belief in Germany’s victory remained undimmed even as he took refuge in his bunker in besieged Berlin.

But a functioning fantasy promoted by the most effective propaganda machine in the world can’t bring that fairy dust into existence just as it couldn’t sustain the Third Reich. Here again we see Republicans butting heads against a reality they can’t acknowledge on ideological grounds.

Likely – but not certainly (think about who we are talking about, after all) – the Republican candidates know there is no such fairy dust. But as long as talking about it gets them elected they are willing to go on promoting their baseless objections and magic solutions. Only Michele Bachmann – of all people – has realized that there is no magic wand, saying during the September 7th debate: “With all due respect … issuing an executive order will not overturn this massive law.”

No it won’t. And neither, apparently, will the courts. Nor is it likely that the latest ruling will be the rope to pull the Republican Party back to sanity and a shared reality.

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