Tuesday, March 23, 2010

Let the Lawsuits Begin!

Some states have already filed suit against the newly enacted Obama health care law. Private citizens will certainly do so as well, though it will take some time before they can because they will have to suffer a tort first.

Proponents of the reforms are of course pooh-poohing the suit and I must say the new law's demise does not appear imminent. I would like to see, however, more constitutional law questions revolve around the Preamble. You know the song!

"We the People [of the United States,] in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

In the 18th century (when our current constitution was ratified -- look it up!), the preamble of a law or constitution was of crucial importance because it established policymakers' intent by describing their overall goal. Every federal law, ergo, should achieve at least one of the goals listed in the Preamble or be declared unconstitutional.

The Obama health care legislation does not make the Union more perfect, establish justice, insure domestic tranquility, or provide for the common defense. It also does not secure the blessings of liberty to this or subsequent generations. Its only justification, like so many laws, is promotion of the general welfare. Unfortunately, the law only asserts to promote the general welfare, it does not prove that it will do so. Worse, nothing ensures the legislation will be changed if it does NOT promote the general welfare, or even that an attempt will be made to measure its impact on the general welfare. Due to its long phase in, which a cynic might think was created in order to shield its proponents from the wrath of voters in 2010 and 2012, the law's effect on the general welfare may not be discernible until 2015 or later. If at that time the law appears to be hurting the general welfare, I hope that somebody with the wherewithal to win files suit on the basis of the Preamble. Heck, I wish somebody would do that re: Social Security and a 1,000 other clearly pernicious pieces of legislation right now!

In the 18th century most laws expired after so many years (1, 5, 20). Laws that were salutary were renewed without any trouble. Those that were dead letters died as did truly pernicious legislation protected by powerful interest groups. We should really think about returning to the system of expiring laws. After all, what good is "democracy" and "representative government" if legislators can burden future generations, to wit people who did not vote for them, with policies that, while deeply and obviously flawed, become virtually impossible to reverse, no matter how dysfunctional they become? Call it the tyranny of the deceased.