Very Hot Air From "Hot Air" -- Regarding Healthcare Reform

Ed Morrissey of Hot Air has pumped out an essay defending the rightwing's largely unsuccessful effort to convince any reputable constitutional law scholar (on the right or left) that proposed healthcare reform would violate the Constitution. Morrissey's essay takes issue with my recent post that applauds Nancy Pelosi for dismissing a CNSNews reporter's question on the subject. Morrissey makes several arguments. I find none of them persuasive.

Conservatives Have Demanded "Absurdly Specific" Language Justifying Healthcare Reform
Morrissey says that "our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution." This is disingenuous. On September 22, Hot Air posted a viral video (via CNSNews) that shows a high school "government" teacher pleading with Mark Warner for specific language in the Constitution authorizing the government to "run healthcare." Certainly, a citation to Article I, or even more specifically to the Commerce Clause or to the taxation and spending powers, would not have alleviated her anxiety. Nor would it have satisfied Hot Air and CNSNews.

Furthermore, the CNSNews article that served as the basis for the Hot Air piece ominously reported that Warner said "there is 'no place in the Constitution' that mentions health care. . . ." If conservatives are, as Morrissey claims, uninterested in absurdly specific text, then Warner's statement is not newsworthy. Clearly, the Constitution does not mention health care (or education, telephones, etc.). This silence, however, does not deprive Congress of any authority over the industry.

In addition, Morrissey himself has argued that unless the Constitution "covers" a power, then Congress must "butt out." He made this assertion in response to Representative Shea-Porter's rejection of a strict reading of the Constitution that would limit Congress to the exact wording of the text. If Morrissey is not demanding exact language regarding healthcare, then he should not have found Shea-Porter's argument worthy of discussion. Although Morrissey has been more flexible at times, he has (intentionally or unintentionally) pushed a method of constitutional interpretation that he now labels "absurd."

The Framers Did Not Know About Airplanes
Morrissey also takes issue with my argument that demanding specific text on a subject would nullify the government's authority to create the Air Force. Morrissey, of course, does not point to language in the Constitution that refers to the "Air Force" or even to airplanes. Instead, he cites to more generalized language empowering Congress to provide for the "common defence." This, however, is the exact same type of constitutional interpretation that should guide debates over the constitutionality of healthcare reform. Interstate commerce, taxation, spending, and "general welfare" come to mind as places to anchor healthcare reform. Conservatives, however, have demanded precise language from liberals, while embracing generalized provisions to justify policies they favor.

Furthermore, Morrissey completely ignores more difficult questions that the strict approach implicates. For example, he specifically evades the question of Medicare's constitutionality, and he is absolutely silent regarding federal bans on partial-birth abortion, crack cocaine, acts of terrorism and other issues my essay raises. I do not believe these laws necessarily fall outside of the scope of federal authority, but I have not approached the Constitution from the constrained perspective that conservatives have advanced.

The Tenth Amendment Does Not Make Healthcare Reform Unconstitutional
Finally, Morrissey's interpretation of the Tenth Amendment -- which other conservatives seem to share -- is also flawed. In a prior essay, Morrissey argues that:

The Constitution sets their power and circumscribes it rather clearly in Article I, Section 8 and Section 9 of the Constitution. The Tenth Amendment reserves all other powers to the states or to the people, underscoring the explicit limitation on Congressional power. . . .Therefore, when the Constitution does not “cover” a subject, it explicitly and expressly intends for Congress and the federal government to butt out.

The Tenth Amendment is a truism: every power that is not delegated to the federal government is retained by the states. The provision, however, does not tell us what is in fact delegated. Nor does it state that the text of Article I expressly "covers" the entirety of permissible federal authority.

Morrissey is stuck in the era of the repudiated and supplanted Articles of Confederation. Anyone who has read McCulloch v. Maryland should know that the Court rejected the notion that unless the power was "expressly" mentioned in Article I, then Congress lacked authority; this was the law under the Articles of Confederation. Under the Constitution, Congress (as Morrissey seems to concede) has implied powers. Accordingly, the Tenth Amendment does not provide any useful information about this subject.