Five Things about Tom Perriello's Post at The Atlantic

Tom Perriello's post at The Atlantic comparing opponents of the Affordable Care Act to secessionists and segregationists has effectively annoyed the bejesus out of me.

1. Calling people "Confederates" is tantamount to calling them traitors and racists. Pierello admits this explicitly, noting, "the term 'Confederate' rightly conjures up America's sin of slavery and the racially charged movements for states' rights and state nullification." Conflating opposition to the the constitutionality of the individual mandate in the Affordable Care Act with slavery, secession, and segregation is sloppy and ignorant. Calling people "confederationists" in a context in which you have already invoked the Civil War is no better.

2. The Founders did not write "a Constitution that empowered America to 'legislate in all cases for the general interests of the Union.'" That language is not in the Constitution at all. In fact, the Constitutional Convention explicitly rejected James Madison's proposal to authorize Congress to "legislate in all cases." Instead, the Convention granted Congress a limited set of enumerated powers---including the power the regulate interstate commerce. As a result, Congress may not do whatever it likes or whatever might be expedient. It must act within the confines of its enumerated powers.

3. In Lochner v. New York (1905), the federal Supreme Court ruled that the due process clause of the Fourteenth Amendment to the federal Constitution prohibited states from imposing minimum wage laws. Lochner is a case about the federal government imposing its will on the states. Invoking Lochner to indict the current Supreme Court's alleged preference for a weak central government is inappropriate at best.

4. Yes, the Supreme Court just ruled that Montana's restrictions on corporate contributions to political campaigns violated the First Amendment. Once again, that is evidence of the Supreme Court's willingness to impose a centralized view of government power on the states. That is also evidence in its decision in Arizona v United States, which held that that most of Arizona's strict immigration law, SB 1070, is preempted by federal immigration law.

5. Invalidating the Affordable Care Act's individual mandate and other, nonseverable provisions of the law does not threaten Social Security or Medicare. Congress has the power to tax and spend for the general welfare. It could have enacted health care reform in any number of ways that simply raised tax revenues and spent money on health care, just as it does for Medicare. Instead, it chose to mandate that people purchase health insurance. Medicare and Social Security may or may not be wise policies, but they are within the bounds of Congress's enumerated powers. The mandate to purchase insurance is outside of those bounds. The Court can invalidate the mandate and leave those other programs, and indeed, the rest of the architecture of the modern welfare state intact. This is precisely the position adopted by Randy Barnett, the lead attorney in the case against the mandate.