Nancy Pelosi: She Who Saved Comprehensive Healthcare Reform

The New York Times joins Politico with an article that gives House Speaker Nancy Pelosi much of the credit for comprehensive healthcare reform. Sheryl Gay Stolberg, Jeff Zeleny, and Carl Hulse report that after Scott Brown won the Massachusetts Senate election, the prospects for comprehensive reform died. White House Chief of Staff Rahm Emanuel urged President Obama to abandon the more elaborate package and to pursue piecemeal legislation. Pelosi dismissed this approach as "Kiddie Care."

The New York Times article confirms much of the substance of the Politco article, but it adds factual details. The New York Times describes a partnership between Obama and Pelosi that developed once he trusted her instincts on reform more than his most senior advisor.

Here is a clip from the article:

In a series of impassioned conversations, over the telephone and in the Oval Office, [Pelosi] conveyed her frustration to the president, according to four people familiar with the talks. If she and Harry Reid, the Senate Democratic leader, were going to stick out their necks for Mr. Obama’s top legislative priority, Ms. Pelosi wanted assurances that the president would too. At the White House, aides to Mr. Obama say, he also wanted assurances; he needed to hear that the leaders could pass his far-reaching plan.
“We’re in the majority,” Ms. Pelosi told the president. “We’ll never have a better majority in your presidency in numbers than we’ve got right now. We can make this work.”

Now, in what could become a legislative Lazarus tale — or at least the most riveting cliffhanger of the Obama presidency so far— the House is set to take up the health bill for what Democrats hope will be the last time.

For Mr. Obama, who vowed earlier this month to do “everything in my power” to see the bill to fruition, the measure’s passage would be an extraordinary triumph. Its defeat could weaken him for the rest of his days in office.

Only a month ago, several journalists wrote off comprehensive healthcare reform and asserted that Emanuel was right to advocate less. Today, it appears that the opposite is true.

See also: Pelosi Convinced Obama to Reject Emanuel's "Kiddie Care" Proposal and to Pursue Comprehensive Reform.

Pelosi Convinced Obama to Reject Emanuel's "Kiddie Care" Proposal and to Pursue Comprehensive Reform

Politico writers Carrie Budoff Brown and Glenn Thrush report that House Speaker Nancy Pelosi convinced President Obama to renew the push for comprehensive healthcare reform after Scott Brown won the election to replace Senator Edward Kennedy. If the Brown and Thrush article is accurate, then it soundly refutes the notion that passing healthcare reform legislation would vindicate Rahm Emanuel.

Emanuel, as several media sources have reported, preferred a piecemeal approach to healthcare reform.  According to Brown and Thrush, however, Pelosi rejected this strategy and dubbed it "Kiddie Care." The article also reports that Obama was torn between Pelosi's comprehensive approach and Emanuel's incrementalist proposal. Due to Pelosi's advocacy, Obama finally embraced the comprehensive plan and rejected Emanuel's advice.

Despite the upcoming passage of a comprehensive reform package, Politico writer Ben Smith recently argued that the reform legislation would vindicate Emauel.  Liberal bloggers immediately blasted the idea. Now, Smith's own colleagues have finished ripping his theory to shreds.

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.

Pelosi Was Right to Dismiss Question Regarding Constitutionality of Healthcare Reform

Updated Thread: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

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Today, a "reporter" from CNSNews.Com, a conservative blog, asked Nancy Pelosi to point out language in the Constitution that specifically authorizes Congress to mandate that individuals purchase health insurance. Pelosi dismissed the question by responding, "Are you serious?" Pelosi's response was absolutely warranted.

Conservatives have tried unsuccessfully to argue that the Constitution does not permit various aspects of Democratic healthcare reform. Liberal and conservative Constitutional Law scholars have rejected these arguments, but people continue to assert them.

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

In addition to the above observations, a method of constitutional interpretation that demands specific and unambiguous textual support would mean that the following federal rights or powers could not exist: the right to pray during school or to be free of racial quotas in college admissions; and the power to ban child pornography on the Internet; "drill drill drill" for oil in Alaska; force air passengers to submit to safety screening; and to criminalize acts of terrorism. The Constitution does not specifically mention any of these things.

I am happy to debate the meaning of the Constitution -- but, please: let's retire ridiculous and unserious arguments.

UPDATE: Hot Air chimes in, and I respond: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.