Here's one reason why too many Americans don't trust us Democrats to govern: We never met a regulation we didn't like. He governs best who governs the most, we seem to believe.
This is painfully evident in Clinton's health care mandates, with which Clinton expects to use the federal power to force citizens to purchase health insurance from private for-profit insurance companies merely as a condition of U.S. citizenship.
One can imagine the Clinton elite, ensconced behind closed doors, each competing to devise some new regulation that can be heaped into the tramp stew that is Clinton's health care reform proposal, and someone insisting, well, we must force the knuckleheads to purchase insurance. They can't be trusted to do what we want otherwise.
Clinton's approach to legislation is unfocused and undisciplined.
But Barack is different, and this difference is yet another reason why Obama is the best candidate for the White House in 2008.
Barack believes that he governs best who governs with restraint. Barack focuses on the problem, devises a proposed solution, and then asks, is there anything of a regulatory or coercive nature in this proposed solution that we really don't need right now. If so, let us get rid of it and see if the resulting leaner, more focused legislation will solve the problem.
And Barack's propensity to reach across the aisle, as they say, and seek input from political competitors (ie: the Republicans) actually helps foster this sense of a disciplined approach to legislation.
Thus Barack recognizes that restraint and discipline dictate that a broad mandate to force citizens to purchase health insurance is not an appropriate component of a healthcare reform proposal. Such a mandate is likely to spark fear, anger, and resistance among a populace that steadfastly resents excessive government domination and coersion over their lives.
I'm an attorney admitted in good standing in Massachusetts and Maine. I am an ardent supporter of Barack's candidacy.
I have created this blog because I believe that Barack's proposals for solving the major problems facing the U.S. are the best out there, and I'd like to spark some analytical discussion as to why they are so.
At the moment, I am particularly concerned about the mandates contained in the healthcare reform proposal of Barack's opponent for the Democratic nomination (ie: Clinton). It struck me that little discussion has taken place as to the political and constitutional viability of mandates. I want to hear what others think.
The U.S Constitution does not give the federal government the authority to directly require any citizen to purchase health insurance from a private, for profit insurance company merely as a condition of U.S. citizenship or residency. The commerce clause gives Congress the authority to regulate commercial transactions in which citizens freely engage, but I have found no case which suggests that it gives Congress the authority to force citizens to engage in a transaction they would otherwise shun. The states may have the authority to force their citizens to purchase health insurance-- depending upon their state constitutions-- but the federal government cannot force the states to force their citizens to make such a purchase. This is the so-called anti-commandeering doctrine. The federal government can offer incentives for states to pass legislation, but the incentives cannot be coercive in nature. See South Dakota v. Dole, 483 US 203 (1987). The incentives must be closely related to the program for which the federal government seeks state enforcement. You cannot threaten to withhold highway funding in order to compell mandates on healthcare, for example.
So against that backdrop, let's look at the Clinton proposal to mandate that citizens purchase private health insurance. First, such a proposal cannot directly mandate such a purchase. It must work through the states. But such legislation cannot be coercive in nature. It cannot punish states that refuse to enforce the mandate. It can only offer incentives to encourage the states to enforce the mandates, and the line between what is an incentive and what is coercive is not well defined. But the Court in South Dakota clearly suggested that threatening to withhold excessive amounts of federal funding would be coercive, and thus unconstitutional.
So Clinton's mandates can be foisted upon the states only by a threat of witholding some small portion of federal funding. (In the South Dakota case, the Court allowed the witholding of five percent of federal highway money as an 'incentive' to get the states to raise the minimum drinking age.)
Where health insurance mandates are concerned, I ask, is it realistic to assume that every state in the union will go along with such a mandate program? And if some states balk and refuse, even to the extent of surrendering 5 percent of some federal funding program, won't that create an even bigger mess than we have now?
Barack Obama's plan seems to account for this. Barack seems to have responsibly taken into account both the political and the constitutional factors in fashioning a plan that does not rely upon broad citizen mandates. A plan that seems designed to achieve some important goals while recognizing that achieving a perfect system is, for the moment, unlikely. (A perfect system for me would be single payer national healthcare.)
I'd be interested in hearing from others. Is my analysis valid? Please don't hesitate to be critical. We all seek the best solution.
