Health care law shows why we need courts to guard against government overreach

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Katelynn McBride
Katelynn McBride: The realization that Congress had passed a law stuffed with mandates and unwelcome surprises has been dawning ever since it was enacted.
Courtesy of Katelynn McBride

Katelynn McBride is an attorney with the Institute for Justice Minnesota Chapter.

Health care reform's sordid journey through Congress in early 2010 is a sobering reminder of why the Framers both limited and divided the power of government.

The House and Senate votes were divided along strictly partisan lines. Not a single Republican voted for the law when it finally passed, and the last Democratic votes were bought with backroom deals granting special favors in the form of billions of extra federal Medicaid dollars to the few states lucky enough to have senators holding out.

It does not appear that the supporters of health care reform gave any serious consideration to the law's constitutionality, a question that is scheduled for three days of argument before the U.S. Supreme Court next week. The unseemly process by which the law was enacted, and the apparent failure to consider its profound constitutional concerns, are precisely why we need an engaged judiciary to review and, when necessary, check the power of the Legislature.

The realization that Congress had passed a law stuffed with mandates and unwelcome surprises has been dawning ever since it was enacted. These requirements run the gamut from perplexingly trivial (such as a 10 percent tax on indoor tanning salons) to serious infringements of personal and religious liberty (like forcing private employers, including the Catholic Church, to pay for birth control).

One might think the legislative process would be at its most deliberative when considering a bill that would fundamentally alter the American health care system and institute one of the most expensive programs in our nation's history. The Congressional Budget Office (CBO) estimates that health care reform will cost $1.76 trillion over just the first 10 years, nearly twice the CBO's original $900 billion estimate, with much of that cost falling to the states.

If only we could have anticipated that our legislative system would be at its most dysfunctional precisely at our time of greatest need. If only we could have known that Congress was capable of passing such a costly, expansive and intrusive law with so little deliberation regarding its content or constitutionality.

But we did know.

We have known about the inherent defects of our legislative system since before the U.S. Constitution was even signed. James Madison, one of its primary drafters, famously stated, "If angels were to govern men, neither external nor internal controls on government would be necessary." The Constitution was written with the knowledge that men are not angels and that the legislature must be checked by a properly engaged judiciary to counteract the forbidden impulses of those whose natural inclination is to expand the power of government, not restrict it to constitutional limits.

The Constitution was designed to prevent runaway government like we have today and to account for the fact that, as Thomas Jefferson warned, "The natural progress of things is for liberty to yield and government to gain ground." The Framers knew perfectly well that legislatures are not inclined to recognize limits on their own authority.

When they do not, it is the job of the courts to enforce the Constitution. Increasingly, however, courts are not doing that job. A study by the Institute for Justice last fall found that the Supreme Court struck down just two-thirds of 1 percent of federal laws enacted between 1954 and 2002.

Legislative and executive overreaching and judicial abdication have transformed the Constitution from a charter of liberty into a source of virtually limitless government power. We need judges who will protect our right to limited government.

When the Supreme Court hears oral arguments on the constitutionality of health care reform next week, the justices should remember that limited government and individual liberty are two sides of the same coin. The people of Minnesota don't need or want public policy solutions imposed on them by elites in Washington; the Constitution was designed to prevent that from happening. But without a properly engaged judiciary to enforce them, constitutional limits on government power are nothing but a parchment barrier.