Friday, July 11, 2008

Gavin Is Wrong

My very good friend Gavin at Wordwright is very wrong when he says that "the Clinton/Obama dichotomy was largely a rhetorical mirage" and that Obama is really a "centrist in progressive clothing."

First, there's nothing "rhetorical" or "unsubstantial" about authorizing war in Iraq and agitating for ops in Iran in order to cultivate an appearance of toughness. If Democrat politicians are rewarded rather than punished for "tacking to the center" when Republicans want to invade and occupy foreign countries, then we will always have liberals in name only, especially if they want to be President someday. Here Matt Yglesias is right: if Clinton had come out tough and firm against the war in Iraq early, or even a few years in, Obama's candidacy would have had little to no oxygen, with the netroots or anyone else.

Second, I simply do not buy that Obama's health care plan is any more "centrist" or less progressive than Clinton's. Paul Krugman may think that opposition to unfunded mandates is just a Republican talking point, but the difference is that Republicans use the specter of the government requiring everyone to buy insurance to scuttle any real health care solutions. Obama is taking away that objection, and that objection is neither trivial nor partisan.

Back in March, a law professor at Loyola College and a consumer watchdog published an essay attacking the Clinton plan (or any plan requiring everyone to buy insurance) as unconstitutional:

Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

The closest we come is when government imposes a condition on the grant of discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary – you don't have to drive a car or build a house. Nor do you have a constitutional right to do so.

But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits.
Essentially, a compelled purchase constitutes a "taking of property" which violates the due process clause. And these aren't right-wing hacks advocating we do nothing about health care:
There are far more sensible and constitutional ways to provide health coverage. Government-funded insurance (such as Medicare or single-payer insurance) or regulation and tax subsidies to encourage voluntary participation (as in Obama's plan) both contain costs more efficiently and avoid the slippery slope of unconstitutional mandates.
Face it, folks. I know it's hard to believe, but we've got a real liberal Democrat who's running for President. And he's going to win.

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