Ages ago, at the dawn of politics, by which I mean in late 2008, our country had just finished an election cycle of historic significance. Collectively, we knew that we needed something or other that fell under the term “change,” and that’s what we voted for. Along came the 2010 mid-term elections, and we felt confused and anxious. Somehow the meal of change we had voted for last time didn’t taste as good as we were expecting it to. We sent the plate back to the kitchen and asked the chef to prepare us a fresh plate of some other kind of change. Now, as the 112th Congress takes office, we can ask ourselves, exactly what is the chef whipping up back there?

In our hearts, I think we know that our change needs to embrace a new kind of fiscal restraint at the federal level. It’s hard to define, but deep down we know that annual trillion dollar-plus deficits, with federal debt now exceeding $14 trillion, just cannot be sustained. In fact, we voted in great numbers for those candidates who promised such things as “balancing the budget” and “reducing the federal debt.” But that was in the campaign season. As someone (Nixon, I think?) once said, one campaigns in poetry and governs in prose.

What do we know so far about the governing reality? One, we know that our elected officials chose lameduckedly not to capitalize on an opportunity to reduce future deficits — foregoing an opportunity to reduce our federal debt over the next decade by $2.7 trillion. Not that there weren’t good reasons for doing so, but the action did display the stark tradeoff between tax cuts and deficits.

Two, we know that House Republicans intend to trim $100 billion in spending from the next budget. Well, if one is a deficit hawk, I suppose you can at least say that points in the right direction. The federal government spent $6,412.7 billion in FY 2010. So the Republican idea is, apparently, to move us to the $6,312.7 billion annual spending level, an overall reduction of about 1.6%. Personally, I find it hard to discern why spending $6,412.7 trillion (and incurring a deficit of $1,555.6 trillion) is catastrophic, while spending $6,312.7 trillion (and presumably incurring a deficit of $1,455.6 trillion) — each amount being $100 billion less than FY 2010 — is good policy. Seems kind of like saying, you can eat 20 donuts a day and not gain weight… but if that 20th donut has sprinkles on top, then you’re going to rush headlong into morbid obesity.

Three, Republicans are putting a lot of stock into Rep. Paul Ryan’s fiscal “Roadmap.” I like his roadmap, at least in concept; like any smart politician (campaigning in poetry, as I said), he leaves the details fuzzy. But we also must understand how greatly the Roadmap departs from the campaign rhetoric. Taken at face value, the Roadmap envisions non-stop federal deficits for the next 41 years. Those deficits will decline annually until 2017/2018, and then will start to increase again, and will do so through 2037.

Let’s state the fiscal reality out loud, my friends. The Republican plan does not balance the budget. It does not reduce federal debt. It contemplates nearly endless deficits and non-stop additional federal borrowing. That’s not me saying it, that is what is in Rep. Ryan’s Roadmap. If anyone still thinks that deficits and debt accumulation are a function of recent Democratic policies, they are wildly information-averse. These deficits are structural to the core. They are the result of decades of entitlement spending growth and tax cutting.

If there is any remaining doubt that governing reality will fail to match the political rhetoric, let’s all watch today as the new House Republican leadership has the U. S. Constitution read on the floor of the chamber. There’s another bit of powerful campaign poetry: “Restore the government to its constitutional boundaries!!!” Really? Keep a list in the weeks to come of federal programs the Republicans deem unconstitutional and therefore targets for elimination. Then ask yourself, if those programs fail to pass constitutional muster, on what basis do these programs pass: Social Security? Medicare? Medicaid? Food inspections? NASA? National Parks? DEA approvals of prescription drugs? The EPA? Nursing home oversight? Financial market regulation? Are Republicans really going to propose elimination of all these federal programs? Or they are somehow constitutional, but “Obamacare” is not? Where is the line???

In other words, if the Republicans sincerely believe in strict constitutionalism, then go after them all. But if they only target a select few programs, then we will know that their actions are driven by political calculations, and not by true constitutional principles. Another plate of “change” served up to us that ends up being inedible.

Tune out the rhetoric. It is meant only to deceive and pacify you. Observe the actions, and assess the results.


The Tea Party serves us much better as a valuable gadfly, forcing the two parties who can actually govern this country to recognize fiscal restraint and the limitations of government. Apparently, neither major political party is capable of keeping that message in mind.

As a paradigm of governnance, though, the Tea Party is inane. Their candidates promise both balanced budgets and tax cuts. Really? They have $1.3 trillion in spending cuts to offer? I’d like to see the list. I’d like to see how those spending cuts will be implemented without pushing our economy into a nuclear winter of a depression, leaving us yearning for 1930, or at least 2008.

Their candidates promise to return government to its proper constitutional boundaries. Really? As just one example, Alaskan Senate candidate Joe Miller says unemployment benefits are unconstitutional. Fair enough, but why stop there. The same reasoning renders most of our current government apparatus unconstitutional: Social Security, Medicare, Medicaid, student loans, housing programs, energy assistance programs, science funding, farm subsidies, food inspections, drug approvals, the space program, aid to education. So, just like “balance the budget and cut taxes,” this talk of proper constitutional boundaries leads to an absurdist model of governance.

I say, let’s take the sober message of the Tea Party — which I define to be, live within our means — and discard the actual Tea Party candidates. We don’t have time for this foolishness.

I have a very simple standard for constitutionalism.

If a candidate wants to adopt a strict constitutional limits position and promises to legislate on that basis, then I will vote for him or her. That means he or she must agree to support legislation abolishing the 2010 healthcare reform bill, the Social Security Act, the Medicare and Medicaid programs, the various environmental protection acts (Clean Water, Clean Air, etc.), government regulation of nuclear power production, food and drug and consumer product safety, all agriculture subsidies, NASA, student loan programs, income tax deductions for home mortgage interest, and air traffic safety.

If they adopt the position that the Constitution was engineered to be a flexible, evolving framework, and based on that, they promise to retain all of the above functions of government, then I will at least listen to them. At least they are being intellectually consistent.

But if they campaign on the idea that the 2010 healthcare act is non-Constitutional, but will not sign on to legislation to eliminate all those other programs of comparable constitutionality, then I will reject that candidate for his or her hypocrisy.

The next battle over the healthcare reform package may take shape in the courts. Eleven attorneys general have indicated an intention to file suit in federal court, alleging that the act is unconstitutional. I am no lawyer, but there is some intriguing legal reasoning here. In the words of Virginia Attorney General Ken Cuccinelli:

“With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce,” Cuccinelli said. “We contend that if a person decides not to buy health insurance, that person – by definition – is not engaging in commerce, and therefore, is not subject to a federal mandate.”

Are there other instances where the federal government requires individuals to engage in such actions? It is surprisingly hard to think of any such precedents. There are plenty of examples where public safety is involved: commercial property owners required to purchase fire suppression sprinklers and car owners required to purchase seat belts, to name two commonplace examples. The legal distinction being made is that owning commercial property or a car is a voluntary act — you don’t have to own them, so you don’t have to buy sprinklers or seat belts. This act, by contrast, imposes a mandate on everyone, and there is no means to opt out. On the other hand, it is beyond conception that our entire nation could opt out of commercial property and car ownership; for tens of millions of Americans, there is no practical path to opt out. For them, sprinklers and seat belts are government mandates akin to health insurance under this new act. But it is hard to find a precisely applicable precedent for this.

Although constitutional validation may not be easily found in the commerce clause, that does not mean the act is without significant constitutional justification. Many acts of government have been justified (and upheld by the courts) under the so-called General Welfare language. Article I, section 8 of the U. S. Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States.” Legal scholars have been debating the extent of this authority for the better of our nation’s history.

I have no doubt that there are “general Welfare” implications of the healthcare reform act. People without insurance drive up healthcare costs on the remainder of the population, shifting their obligations to others through bankruptcy, abuse of emergency rooms, consumption of charity care and other behaviors. The state has a valid interest in preventing these dysfunctions.

So I don’t know what the exalted legal minds of our time will say. From a pragmatic point of view, it seems highly unlikely that the courts will strike this down. Unless the legal issues all unambiguously point to unconstitutionality, the courts tend to grant wide berth to the other branches. Proving the inapplicability of the commerce clause is insufficient for the attorneys general to prevail; all the government needs do is find any constitutional justification for the act, such as general welfare. We’ll know soon enough.

The blogosphere and talk radio are awash with opinion that the healthcare bill just passed violates the Constitution. The 10th Amendment is suddenly back in the headlines for the first time since, oh, about 1791. Various attorneys general are signalling their intention to challenge this legislation on constitutional grounds — even before it has been signed into law.

For 220 years now, the federal government has been on a singular trajectory: MORE. This healthcare bill is not a change of direction in that regard; it is simply the latest instance. I can’t say whether that is, overall, a good thing or a bad thing. The empirical evidence is that we have two hundred plus years of federal expansion, during which we have become the greatest nation on earth. Apparently, at the very least, federal expansion does not preclude national greatness.

That being said, I would like to see something from our elected officials who have blasted this bill for being unconstitutional. They should consistently vote in opposition to the myriad of federal programs that have accumulated over the years which have no more constitutional validity than this healthcare package. If this new health bill is unconstitutional, then surely so too are Medicare, Medicaid, and Social Security. What’s the difference? Why do those programs deserve annual appropriations but this new one does not?