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COMMENTARY
March 28, 2012
Tyranny in a word
What does "mandate" mean? The word is worth considering. The case which has gone before the U.S. Supreme Court this week is among the most important in American history.The question of whether the basic mandate of ObamaCare, and subsidiary mandates, are constitutional, goes far beyond impact on this year's election campaign. For if they are ruled to be so, the power of the U.S. government to positively command the citizen's behaviour will no longer have any plausible limitation. Alternatively, if all or any significant part of ObamaCare is ruled to be unconstitutional, there will be a political crisis. It is inconceivable that Obama and the Democrats would take such a decision lying down. Their principal legislative achievement would be obviated. The decision will almost certainly be 5-4, either way. As several courtwatching pundits have observed, it will therefore probably turn on "which side of the bed Anthony Kennedy gets out of." A "mandamus" is a royal decree. It is a writ commanding the performance of an act. Similarly, a "mandate" is a legal command; hence, "mandatory." We say in Canada that the winning party in an election has a "mandate to govern" - from the Queen, or in republics abstractly from "the people." This, however, does not confer upon that government any extra-constitutional powers. The issue before the U.S. Supremes is, at its narrowest, very broad. Behind the constitutional question lies centuries of contract law. ObamaCare mandates, or commands, citizens to purchase private health insurance, to cover things a government agency stipulates in detail (including already: contraception, sterilization, and abortifacients). Long before the U.S. Constitution, the common law was clear on the voluntary nature of a contract. No one can be compelled to enter into a contract, and if a party can prove coercion, the contract is void. The administration proposes to get around this, by citing provisions that give the U.S. Congress the power to regulate interstate commerce. That power has been extended incrementally over generations, so that there are now precedents for much heavy-handed intervention by federal government in matters once reserved to the states. ObamaCare on the surface only pushes this envelope. But as George Will mentions in his Washington Post column, an elegantly argued amicus brief to the Court demonstrates that Obama-Care is unique in one crucial particular. It is the first time Congress has imposed a law regulating commerce from which there is no legal escape. Aware of the cogency of this argument, Obama's solicitor-general, Donald Verrilli, maintains that the fine imposed on persons who refuse the command to buy health insurance is really a "tax," and that if they "pay the tax, then they are in compliance with the law." Even the Democrat-appointed justices laughed, Monday, at his persistence in making this sophistical point. But the justices are in an unenviable position. They will be demonized by Democrats if they fail to find a constitutional hole through which ObamaCare can be driven. And they will be demonized by Republicans if they find one. (The polls show about two-thirds of Americans want this aspect of ObamaCare repealed.) Our Canadian system of Crown in Parliament is different in kind from the U.S. system. We had nothing to match the power of fundamental constitutional rights, until Pierre Trudeau's Charter of 1982. But that was no advance, for it empowered governments to positively command things, restricted only by such vague, subjective, and ultimately meaningless limits as might "characterize a free and democratic society." Notwithstanding, the same objections were made up here, when "medicare" was being transformed into universal health care. The objections were also anticipated, which partly explains why governments, from Tommy Douglas's CCF in Saskatchewan, to Lester Pearson's NDP-supported minority in Ottawa, proceeded immediately to full socialism. That is, we got around issues in contractual law by making health insurance universally "free," then taxing everyone to pay for it. The initial resistance of doctors and hospitals was then overcome, by buying them off. (They would now be able to collect all bills at full rate from the state; previously they'd served many customers who couldn't pay, or needed discounts.) Any further individual or institutional resistance was made futile: the government could now freely punish the former, and simply nationalize the latter. All the (overwhelmingly Christian) charities, which actually built the hospital system, were now answerable in every detail to the state's bureaucracy. Once sufficient will and power is amassed, a way can be found through any constitutional or legal obstacle. So far the Obama administration has dealt with legal setbacks, habitually, by making cosmetic changes in wording and proceeding as before. This I imagine would be the tactic before the November election. After, supposing an Obama victory, is another question. As he was overheard explaining to Russia's president, on an open microphone Monday, he will not have to face any more elections after November, and will therefore have "more flexibility" - in that case, to negotiate U.S. missile defences; in this, to impose Canadian-style health care. David Warren
© Ottawa Citizen
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