Yet another embarrassing detour into constitutional theory, progressive-style, via CNS. Serious question: Isn’t it high time for Pelosi to call a caucus meeting so that they can hammer out their talking points on this subject once and for all? The left frets endlessly about its poor “messaging” on ObamaCare, yet I can’t help feeling that not being able to answer a painfully basic question about its constitutionality — again and again and again — might, perhaps, be contributing to negative public perceptions. The obvious answer when this issue is raised is, of course, “the Commerce Clause.” The Commerce Clause, according to the left and generations of Supreme Court precedent, entitles Congress to do virtually anything it wants in regulating the economy. If you can dream it, the Commerce Clause can do it! That’s what a government of “limited powers” is all about, right? And yet, behold the parade of dispiritingly horrible answers offered by top Democrats when confronted about it. Phil Hare and Pelosi herself shrugged off the issue of constitutionality as being almost beneath them; Daniel Akaka flatly admitted he didn’t know of any constitutional basis; Sheila Jackson Lee chimed in yesterday with an incoherent due process defense; and now here’s John Lewis not only bringing equal protection into it but citing the “pursuit of happiness” clause in the Constitution’s preamble. Which, er, doesn’t exist: As CNS notes, that’s a phrase from the Declaration of Independence. What Lewis means, I assume, is the “general welfare” clause of the preamble, which is a lame argument insofar as the preamble doesn’t have the force of law but at least has the virtue of citing a provision that’s actually in the Constitution.
I don’t know what he means by claiming that this is an equal protection issue, unless he’s saying that it’s somehow unconstitutional for private insurers to deny coverage to people with preexisting conditions. Not only does that theory lack a state-action component needed to bring the Constitution into it, but I assume it would be found constitutional under the Equal Protection Clause even if state action were present. Remember, not all forms of discrimination are unconstitutional: It’s perfectly okay to tax the rich more than the poor, for instance. Typically, as long as the state has a good reason for discriminating, i.e. as long as you’re not discriminating based on someone’s essential identity (race, religion, gender), it’s legal. Insurers do, of course, have a good reason to deny coverage to people with preexisting conditions — having to cover them would be prohibitively expensive — but if Lewis is so confident that that argument wouldn’t stand up in court, why on earth did we need to pass a health-care bill last year? Why wasn’t there some big progressive push instead for a class action equal-protection lawsuit by millions of uncovered people with preexisting conditions?