As Despotic as They Need to Be

After Scott Brown's unthinkable victory in Massachusetts, the health care fight appeared to be over. Americans exhaled slowly as we backed away from the edge of the Democrats' attempted takeover of the health care system. Freedom survived another scare. Several of last weekend's CPAC speeches spoke of the victory over the health bill in past tense.

But Obama's new scheme makes that celebration appear premature. Thursday's health care summit serves as the president's new launching point. If the meeting succeeds in putting enough political pressure on Republicans to coax a few of them into voting for the administration's proposal, then health care passes with limited political consequences for the Democrats. If Republicans remain united in opposition to the bill, Obama will use their opposition as leverage to take more extreme measures.

Those measures came to light in reports and interviews over the past several days. White House advisers stated Monday that the Senate will pass the health care bill with 50 votes (with Vice President Biden casting the tiebreaker) instead of the 60 required to defeat the Republican filibuster. Senate Majority Leader Harry Reid has confirmed and defended this strategy.

To fully appreciate the significance of the Democrats' plan, we must first recognize that the health care bill should require the long and difficult ratification of a constitutional amendment. The amendment process, however, was corrupted in the 1930s.

Under heavy pressure from President Franklin Roosevelt, the Supreme Court decided in FDR's favor in the landmark case Wickard v. Fillburn. The SCOTUS decision allowed the federal government to stop a man from growing wheat on his own land to feed to his own livestock. In citing the Interstate Commerce clause, the court effectively justified any government intervention into the economy without the previously requisite constitutional amendment.

The Wickard decision crippled the bulwark that stood between Americans and tyrannical government encroachment. Obama and the Democrats now propose to further weaken the controls on federal powers through the fraudulent use of the reconciliation process (a system designed to advance budget cuts, not sweeping policy changes). The move would allow the health care bill's wholesale societal transformation to become law with a simple majority in both congressional chambers.

Critics of the Senate's 60-vote cloture threshold have come out in full force since the Democrats lost their 60th Senate seat (and some before). "God didn't create the filibuster," huffed Barney Frank last month.

The argument made is that a majority vote carries the day. But the very structure of our Constitutional Republic sets limits on majority power. From the amendment process to the state-strengthening 10th Amendment to the Senate itself, the American system has built-in defenses against what Thomas Jefferson called "mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

Behind the abstract dangers of "mob rule" lies the actual makeup the current Senate majority. The Democrat Senate caucus has four unelected members (CO, DE, IL, NY). Six members won by 3.3% or less (AK, MO, MT, VA, MN, OR) and three of those won by less than 1% (MT, VA, MN). A total of five Democrat senators received less than 50% of their state's vote (AK, MN, OR, VA, MO). And finally, one senator switched parties in the middle of his term (PA). As ironic as it sounds, the Democrats have the slimmest possible 18-seat majority.

Despite their underwhelming mandate, the president's party provides unending justification to expand its power. Congressional Democrats are correct that the Constitution does not explicitly call for the filibuster. The Constitution only sets a vote tally for presidential impeachment, expulsion of a member, the override of the presidential veto, and the passage of a constitutional amendment. Nowhere in the description of the legislative branch does it say how a statute passes, be it by majority vote or otherwise. The parameters for passage are left for Senate (and House) rules.

Therefore, the relevant question is, if the Senate rules are the basis by which laws are passed, and the Democrats are willing to disregard those rules, then what would stop them from passing health care with 40 votes, or 30, or by decree?

Such a scenario is not as improbable as it may sound. We have to look no farther than the cap-and-trade legislation. Near the height of Democrat popularity in 2009, the House's carbon-trading program passed by a razor-thin seven votes. Support for the bill in the Senate is weak, extending no farther than the most liberal members. The administration's response is both telling and disconcerting. A top Obama economic official told reporters the following last December:

If [senators] don't pass [cap-and-trade] legislation, then ... the EPA is going to have to regulate in this area. And it is not going to be able to regulate on a market-based way, so it's going to have to regulate in a command-and-control way.

To enact cap-and-trade by executive dictate or to pass the health care bill without the required votes is more than a mundane dispute over procedure -- it is a matter of government oppression. By claiming the authority to pass health care via reconciliation, some Democrats -- including the president -- have shown that they will be as despotic as they need to be in order to pass the bill. Only fear of the public's reaction will stop them.
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