Obamacare

Big Government Continues Eroding the Constitution

Lawmakers and the courts keep chipping away at our liberty.

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“The natural progress of things is for liberty to yield, and government to gain ground,” wrote Thomas Jefferson. Two hundred and twenty-seven years to the month after he proposed that theory, we have yet another case study to prove it.

Congress has until the end of the month to extend or modify the Patriot Act, passed in the panicky aftermath of 9/11. One of the sticking points has been the dragnet surveillance of Americans’ telephone activity by the National Security Administration that Edward Snowden exposed to the world two years ago. Last Thursday, a three-judge federal appeals panel unanimously found that the data collection program violates the Patriot Actâ€"specifically, Section 215.

Section 215 has been hugely controversial, since it allows the authorities to demand “tangible things” such as books, papers, records and “other items” in the pursuit of an investigation, without explaining why, and to insist that the party handing over the records keep silent about the request. As has been pointed out often since, this means the library has to hand over your borrowing records without telling you.

This was the nail the NSA hung its hat on when it created the bulk metadata-collection program. But as the Second Circuit’s Gerard Lynch wrote in his ruling, while there are supposed to be “reasonable grounds” to think the information requested is “relevant” to a national-security investigation, the NSA simply took the position that it could collect everyone’s records so long as it focused on only some of them. Rather like Schrodinger’s cat, everything is relevant and not-relevant until the NSA acts on it.

The Patriot Act vastly expanded government power. And yet, for the NSA, it did not go far enough. It is helpful to have the Second Circuit slap the agency down, but the courts are not always so constraining. The Supreme Court certainly was not when, in a series of cases culminating with Kelo v. New London in 2005, it gradually unmoored the language of the Fifth Amendment from the purpose for which it was written.

Under the Fifth Amendment, government can take private property only for “public use.” In cases concerning blight and the breaking up of land oligopolies, “public use” became “public purpose.” Then, in Kelo, public purpose became public benefit, even in cases where the property taken went to another private party, rather than the public: So long as the government could assert that the seizure would, someday and however indirectly, redound to the common good, the taking qualified as one for public use.

The High Court did much the same in Wickard v. Filburn. Congress has the power to regulate interstate commerce, and it did so during the Depression when it set limits on the amount of wheat farmers could grow in order to boost prices.

Roscoe Filburn grew more than allowed, but he argued that because the excess was for his own consumption and not for sale, it never entered the stream of commerce, and was therefore exempt from congressional oversight. The Supremes said otherwise: Growing his own wheat allowed Filburn to avoid buying some on the market, and that had at least an indirect effect on interstate commerce by altering the total demand for wheat, so Congress could regulate Filburn’s private use as well.

That line of reasoning came in quite handy for defenders of Obamacare. Opponents of the law’s individual mandate said forcing people to buy something (in this case, an insurance policy) represented a gross expansion of government power, and Congress had no authority to do so.

Supporters said Congress did, because the failure to buy something still affects commerce. In short, “Wickard v. Filburn, therefore your argument is invalid.” The Supreme Court didn’t buy that, but it allowed the individual mandate to remain anyway, on the theory that the penalty for not buying insurance was, in actuality, a tax. (And never mind President Obama’s emphatic insistence otherwise.)

Soon the Supreme Court will rule on another aspect of Obamacare: whether people who buy insurance through a federal exchange are entitled to subsidies. The Affordable Care Act says such subsidies are available only to those who buy insurance through “an Exchange established by the State.” Obamacare opponents say the federal government is not a state, so subsidies aren’t available on federal exchanges.

Many defenders of Obamacare insist this is simply a drafting error that would have been cleaned up in conference committee, if the bill had gone to one (it didn’t). That’s not what the federal government argues, though. In court, the government contends that the words “established by the State” can mean either an exchange established by the state or an exchange established by the federal government in place of the state.

Thanks to the ACA’s ghastly incoherence, you can make a plausible argument for either side. But the argument for the broader interpretation relies on stretching the meaning of words in a manner that would make the NSA whistle with admiration.

Finally, another dispute in the legal community at present concerns occupational speech: Whether veterinarians, psychiatrists, tour guides, and so forth must get a permission slip from the government before practicing their trades, whether doctors can be forbidden to ask their patients about guns in the home, and so on. The libertarian Institute for Justice says such requirements impinge on the First Amendment.

Lining up on the other side are a phalanx of government regulators and Yale law professor Robert Post. In a recent exchange in the Harvard Law Review forum, Post fretted that, should the libertarian view of such matters prevail, “the First Amendment (would be) transformed into a straitjacket for our institutions of democratic governance.”

When an amendment begins “Congress shall make no law. . . “ one might reasonably conclude that constraining democratic institutions is precisely the point. But to advocates of big government, the plain and obvious meaning of the text is a nuisance.

The common thread running through all of these issues is the conjunction between the expansion of power and the distortion of ordinary meaning. Orwell warned about that very thing nearly seven decades ago in “Politics and the English Language,” when he wrote that “political speech and writing are largely the defense of the indefensible.” In that he was, like Jefferson, prescient.

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  1. Yo, fuck the government.

    1. Yo, fuck stupid voters.

  2. it allows the authorities to demand “tangible things” such as books, papers, records and “other items”

    “Tangible things” — as opposed to *what*, exactly?

    1. I would assume intangible things would include electronic records (like metadata). Of course the whole thing would be unconstitutional if anyone actually paid attention to the Constitution anymore.

  3. “whether doctors can be forbidden to ask their patients about guns in the home”

    Mr. Marcus Welby, citizen, has every right to spout his hoplophobic views.

    But Dr. Marcus Welby, MD, has no right to claim that he has special expertise in gun policy by virtue of his knowledge in medical subjects. That would be fraud.

    He also has no right to generate medical records of a person’s gun ownership – medical-treatment records are exempt from the hearsay rule, and can be introduced in court the way the rantings of Mr. Marcus Welby, private citizen, cannot be.

    So if Marcus Welby speaks as an individual, without invoking the protection of the medical profession for hoplophobia, he should be fine.

    Or, alternatively, Welby can establish his own title – “gun violence healer” or “witch doctor” – and so long as he doesn’t pretend to be operating as a physician, he can give all the crappy advice he wants about how guns are bad juju, or whatever.

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  5. Section 215 has been hugely controversial, since it allows the authorities to demand “tangible things” such as books, papers, records and “other items” in the pursuit of an investigation, without explaining why, and to insist that the party handing over the records keep silent about the request. As has been pointed out often since, this means the library has to hand over your borrowing records without telling you.

    So “Section 215” is an amendment to the Constitution that repeals the fourth amendment and seriously degrades the first? I’m genuinely surprised that 3/4 of the states went along with that…

    1. It’s part of the secret amendment process. The real Constitution is classified.

      1. And copyright, so if you publish it, they can get you for copyright violation, too.

    2. When it comes to “patriotism” and “security” for our country, conservatives would support killing jews

  6. Big Government Continues Eroding the Constitution

    Without government, people would have to be digging the earth to find worms to eat, literally. So Big Government allows us to eat our worms in a plate every evening. Oh, and roadz.

    What do you mean “continues”? The Constitution is the creation of government and, like Cronus, government eats its children.

  7. What is this erosion you speak of? The Supreme Court has made it abundantly clear that the letter of the law only matters when it comes time to write up the opinion. Until then, it is all about getting to the desired outcome. Then you backfill your argument to make it sound all legal and whatnot.

    If we had ever had a real constitutionally constrained republic, the supreme court would have struck down most of everything the congress and president have tried to do. And we’d have a couple of hundred more amendments by now.

    Instead they just keep inventing exceptions to the constitution out of whole cloth. Like restrictions on free speech for “obscenity”. Like restrictions on the right to keep and bear arms such as fully automatic weapons bans, rocket launcher bans, explosives bans…. etc.

    If we really had the rule of law, we’d have constitutional amendments allowing the government to intrude in these areas. The same goes for most of the actions of our government.

  8. What is this erosion you speak of? The Supreme Court has made it abundantly clear that the letter of the law only matters when it comes time to write up the opinion. Until then, it is all about getting to the desired outcome. Then you backfill your argument to make it sound all legal and whatnot.

    If we had ever had a real constitutionally constrained republic, the supreme court would have struck down most of everything the congress and president have tried to do. And we’d have a couple of hundred more amendments by now.

    Instead they just keep inventing exceptions to the constitution out of whole cloth. Like restrictions on free speech for “obscenity”. Like restrictions on the right to keep and bear arms such as fully automatic weapons bans, rocket launcher bans, explosives bans…. etc.

    If we really had the rule of law, we’d have constitutional amendments allowing the government to intrude in these areas. The same goes for most of the actions of our government.

  9. Government always just makes up the rules as they go along. Obamacare increased the cost of health insurance for anyone that does not get a subsidy. For example, under Obamacare I went from being able to find a cheap plan for around 85 a month to having to pay 275 a month. Sure in covers more; but, look how much more it costs. I have even wondered if I should just go without healthcare all together. And then we have all these government employees like our judges, prosecutors, tax collection agents, law enforcement, and politicians at both the federal and state level getting free health care for life, including vision and dental. Even after they retire we still must pay our taxes to support these bums years after they ceased working. And then after they pass away, we still must pay to take care of their surviving spouse. We have law enforcement shooting unarmed people in the back and they often get away with it. We have the IRS targeting law abiding citizens for disagreeing with the big government agenda. Recently the ATF wanted to ban all rifle ammo based on their interpretation of gun laws and the Second Amendment. Former Arizona Senator, John Kyle and former AG John Ashcroft, along with Wisconsin Congressman Jim Sensenbrennar, and Diane Feinstein of California, wanted to require that all new born children give fingerprints and DNA to the FBI, so the feds can have all of these identifiers on file.

    1. In continuing, there has even ben talk among our politicians and CJ workers of eliminating the right to a trial in cases involving DNA evidence. And some want to allow the government to retry people previously acquitted of criminal charges, if the government can come up with new DNA evidence. Of course, this would violate the Fifth Amendments right of allowing people to be free of having to face a second trial for the same exact charge, after they have been previously acquitted in a first trial.

  10. In continuing even further, we have millions of current and past fed workers who have not paid their income taxes. IRS does nothing because they are fellow government workers. If they were non government actors they would be in prison, like millions of other Americans, who are behind bars for decades on trumped up charges. A few weeks ago congress passed a massive new sex trafficking law designed to shut down websites like match.com and backpage. It will now hold websites responsible for any illegal activity of other individuals. Even if site had no way of knowing what others would do on it. It also mandates a 15 year to life fed prison sentence plus forfeiture of a defendants home and all assets, if an adult uses any dating site to meet another adult and they eventually end up having sex together. As it is now considered human sex trafficking under fed law. We can thank fed politicians: Ted Poe, Jim Sensenbrennar, Dick Durbin, Diane Feinstein, John Cornyn, Ann Wagner, Harry Reid, and Mitch Mconnel, and numerous other members of our congress. I guess we can say goodbye to internet dating sites.

    1. ” I guess we can say goodbye to internet dating sites.”
      What about Russian brides? Are they next to go? I’ve always wanted one. Should I act now?

  11. “…the distortion of ordinary meaning….”

    Like marriage?

  12. “the First Amendment (would be) transformed into a straitjacket for our institutions of democratic governance.”

    I get the argument. The constitution is in opposition to democracy and therefore the constitution must yield.

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  14. I, a Free Citizen, call for a mass impeachment of the DC elite.

    Their crimes agains our Natural Rights, and the US Constitution, can no longer be ignored.

    The swamp must be cleared of the totalitarians.

  15. One of the many geniuses at Reason should write an article about big corporations eroding the Constitution.

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