That’s a pretty provocative title, but, considering the source, you should take it seriously.
The source is the Cato Institute’s David Rittgers writing in the National Review. National Review is the popular news-magazine for the intelligent conservative.
There are other conservative news-magazines, but this one does not shy away from intellectualism, and neither does it hide from its intellectual roots. This is one reason why, when I want to know what intelligent conservatives think, I turn to National Review rather than, for example, the silly Newsmax or the grumpier-than-thou Weekly Standard.
One other note about National Review: They are happy to engage thoughtfully, open-mindedly, and charitably with people who disagree with them. Jonah Goldberg often has debates with Will Wilkinson, for example.
Back to the provocative title, and its justification. Rittgers argues that the legal power for mandating health insurance stems from a War on Drugs case involving medical marijuana:
The Justice Department is defending Obamacare by asserting that a 2005 Supreme Court case, Gonzales v. Raich, permits such a broad reading of the Commerce Clause that the federal government can tell individual citizens that they have to buy health insurance.
The Raich case was about medical marijuana. Angel Raich, a resident of Oakland, Calif., used medical marijuana to deal with the debilitating pain caused by an inoperable brain tumor, a seizure disorder, and a life-threatening wasting syndrome. California law allowed her to do so, but the Drug Enforcement Administration claimed that the federal Controlled Substances Act (CSA) made no exception for those in Raich’s position.
Raich cemented the legal foundation for the individual health-insurance mandate that has so many conservatives outraged.
The point is that standing on principle in one case, and abandoning it in another, is not merely hypocritical, but self-undermining. Maybe the conservatives who sided with expansive federal powers in the case of the War on Drugs didn’t realize the implications of the grounds that they used to justify the expansion. Or, maybe, they were not aware that the justification for expanded federal power in the one case has implications in other jurisdictions where they did not want the federal government to have such expansive powers. And now they are being hoisted on their own petard.
Several conservative drug-war supporters in the House joined a brief in support of a limitless reading of Congress’s Commerce Clause power in the Raich case but have since denounced the application of that power in Obamacare — the unintended consequence of a shortsighted focus on maximizing drug enforcement.
So, have they realized this, and are they now retracing their abstract theoretical steps and making the relevant connections? Hell no. This is politics, it’s not a philosophy class. In politics, principle matters for a day.
Oh, but it’s different, I suppose, because drugs are bad, mmkay?
It’s not different. And these drug-warrior (please pardon my uncivil language for a moment) assholes were warned:
The jump from Raich to Obamacare is a short one, at least in the government’s eyes. The dissenters in Raich predicted the expansion of Commerce Clause authority. Justice Thomas warned that if the federal government could override a state’s licensing of medical marijuana, “then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.” Justice O’Connor noted the “perverse incentive to legislate broadly pursuant to the Commerce Clause” — the more broadly Congress writes a law, the more likely Raich’s logic is to uphold it. O’Connor discussed how the Court’s logic would allow the government to regulate (and ban) non-commercial activities that would detract from regulated markets, such as home-care substitutes for daycare. This would be funny, if a federal judge had not just ruled that being alive and breathing means you must buy health insurance or face the consequences.
So there it is. Obamacare will survive legal challenges because of the War on Drugs.
The War on Drugs continues to be probably the single biggest and most disastrous public policy in existence. And every single serious, intelligent person who has thought about the issue for longer than the time it takes to run an election campaign recognizes this.
Once upon a time, I challenged drug warriors to provide me with just one serious intellectual who has looked at the evidence and provided a persuasive argument for the continuation of the War on Drugs. That challenge remains on the table, since it has yet to be met.
I know of no intelligent and informed argument in favour of continuing the War on Drugs. None. I am aware of many arguments on many issues that disagree with my own point of view. From socialized medicine to expanding military presence all over the world even to prohibiting gay marriage (or keeping sodomy illegal), there are good, intelligent, serious arguments available that should give intelligent people pause.
There are no such arguments for continuing the War on Drugs.
It is a moral outrage.