Usually, I find myself regretting the time devoted to reading an E.J. Dionne column. Today though, I am glad I did. I start my day flush with the knowledge that poor E.J. is in a righteous snit. His column this morning is about as close to a public surrender on the issue of healthcare that we're going to get until the Supremes come back with their decision (which friends, I still urge caution over).
It seems that once again, the only kind of judicial activism that Dionne and liberals seem to denounce is activism in support of the Constitution. Dionne reserves particular bile for the dialogue of the conservative justices, miming Justice Breyer's whine that it sounded as if they were discussing the merits of the bill. No friends, they weren't. They were trying to make sense of 2700 pages of legislative morass which none in the legislative branch took the time to read and which no one could comprehensively comprehend. What the Democrats in Congress DID understand was that if they inserted a severability clause--something done ROUTINELY in modern legislation--they could have avoided the whole discussion of whether or not to strike down the entire bill. But they chose not to. They chose to try and tie the hands of the court, they tried to raise the stakes so high that the court would have no choice but to assent to the overall Contitutionality of the bill. This was a gamble, and it is one they may lose.
In addition to his characteristic hyperventilation, Dionne engages in the fine art of "cherry-picking without context". He writes "One of the most astonishing arguments came from Roberts, who spoke
with alarm that people would be required to purchase coverage for issues
they might never confront. He specifically cited “pediatric services”
and “maternity services.”Well, yes, men pay to cover maternity
services while women pay for treating prostate problems. It’s called
health insurance. Would it be better to segregate the insurance market
along gender lines?" What he doesn't say is that the line of questioning underway at the time was one in which the government asserted that those choosing not to purchase insurance (the young and healthy, in this case) were "already in the market", and that there was "no doubt that they would someday require healthcare". What Roberts was doing was further defining the extent to which they weren't "in the market". That those who were opting out of the "commerce" to which the government is straining to prove it has the right to compel them, were opting out of "care" that they would never need. And for Dionne's rhetorical purposes this may make a great "gotchya", for the purposes of a line of logic and reasoning, its value was manifest.
Dionne closes by calling upon that great neutral arbiter of the Supreme Court Dahlia Lithwick (note: Canadian citizen) by quoting: “This case isn’t so much about freedom from government-mandated
broccoli or gyms,” Lithwick wrote. “It’s about freedom from our
obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.” No it isn't. Not even close. Liberals would love to have us believe that this is simply a conservative ploy to keep from helping our fellow man. It is about process, it is about order, it is about power--who has it, where does it reside, and how is it properly exercised. Had the Congress simply said, "here is a new tax that we will impose upon the citizenry to pay for care for the uninsured", no one would have argued against their right to do so. We would have argued against the wisdom of such a move, but the Constitutionality of it would never have been in question. Rather than doing so, they sought a way forward that was dubiously Constitutional from the start, one which Candidate Obama (and former Constitutional "scholar" Obama) had serious reservations about in 2008. And now they are paying for it.