If sometime this month the Supreme Court rules ObamaCare unconstitutional liberals will need a scapegoat to blame for what would be not just a defeat for the president’s signature legislative achievement but a historic turning point in the struggle against the aggregation of federal power. But according to the New York Times, the culprit won’t be congressional Republicans or the Tea Party. Instead, it will be the humble green vegetable that many Americans profess to hate: broccoli.
According to the Times’s James Stewart, the turning point in the battle to overturn the health care law was the moment a simple argument illustrating the way liberals have been using the Commerce Clause of the Constitution to expand federal power took hold of the public imagination. It is, as he writes, the “defining symbol” of the debate. As Justice Antonin Scalia pointed out from the bench during oral arguments on the issue earlier this year, if Congress can require every citizen to purchase health insurance simply because it was perceived to be in the national interest, then it could make people buy broccoli, too. Stewart traces the origins of the analogy that has been raised repeatedly by libertarians since President Clinton’s attempt to ram a national health insurance bill through Congress in the 1990s. But while liberals dismiss it as simplistic, it actually goes straight to the heart of the issue. Indeed, if ObamaCare is overturned and the Court begins a rollback of the way liberals have been abusing the Constitution for a century, it may be that broccoli will have played a key role in preserving American liberty.
As Stewart writes, libertarians pointed out during the Clinton-era debate that if the government could force people to do something or participate in commerce that they had not already engaged in (as opposed to regulating activity already commenced), then there was nothing it could not force them to do including eating certain foods or not eating them. This argument was greeted with “howls of derision” by the legal establishment, but it helped convince some jurists and politicians (including a conservative like Sen. Orrin Hatch who originally supported the idea of an individual mandate) that the drive to impose health care was about more than just insurance.
Liberals continue to argue that the talk of broccoli and a nanny state compelling us to eat our vegetables is a diversion from the important question of how to provide health care for all Americans. But the broccoli analogy has initiated exactly the sort of debate about the constitutional limits of government power that have been ignored or stifled for much of the past century.
The point is not about whether health insurance is a good idea or the value of any other potential government service or program. It is whether there is anything, no matter how great its intrinsic worth, that the Congress cannot impose on the nation under the loose authority granted to it by the Commerce Clause? Though Justice Elena Kagan conceded during her confirmation hearing that legislation that would require Americans to eat fruits and vegetables would be a “dumb law,” alluding to the egregious nature of the requirement still begs the question of whether the liberal interpretation of the Constitution would still allow it or any other similarly absurd proposal to stand as constitutional.
For too long liberals intent on telling Americans what they should do or even think have assumed that the law would always be interpreted as giving them leeway to expand federal power wherever it served their interests. They are flummoxed if not infuriated by the way this elementary point about broccoli has brought their latest enterprise to a standstill. They rightly fear that if the courts begin to look at such cases from the frame of reference of preserving individual liberty, the intellectual house of cards that has buttressed their arguments for generations will soon collapse.
If the court strikes down ObamaCare, perhaps Tea Partiers should start displaying a new broccoli flag alongside the historic Gadsden “Don’t Tread on Me” banner they like to sport. Like it or not, more than anything else, broccoli has helped remind Americans that liberty is precious and must be defended against the government.
Will Broccoli Preserve American Liberty?
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The best opponent Democrats could hope for.
Mere days ago, Breitbart’s Steve Bannon told “60 Minutes” that “our purpose is to support Donald Trump.” Then, on Wednesday, Trump decided to make an immigration deal with Democratic leaders Chuck Schumer and Nancy Pelosi over Chinese food. Within minutes, Breitbart was dubbing the president it had pledged to support “Amnesty Don.”
For Breitbart, accusing someone of supporting “Amnesty” is tantamount to calling him a child molester, so negative is its understanding of the word. That is why a White House spokesman declared afterward that Trump “will not be discussing amnesty.” But in the next sentence, the spokesman said Trump would consider “legal citizenship over a period of time.”
That, my friends, is the very definition of amnesty, pure and simple. Forget his Orwellian newspeak: The Trump spokesman was acknowledging his boss had agreed to follow the provisions of the so-called DREAM Act, which would provide a path to citizenship for 800,000 people.
Yes, follow this. Donald Trump, the most anti-immigration president in a century, and maybe of all time, is going to oversee the first wide-scale amnesty since the 1986 Simpson-Mazzoli Act led to the legalization of 3 million illegals.
I like this plan, by the way. But let’s face it. With this deal, Trump has betrayed his core followers and a significant campaign promise—the most startling such turnabout since the first President Bush went back on his “read my lips, no new taxes” pledge.
What gives? When it comes to the DREAMers, Trump surely knows that polls show a near-majority of Republicans (46 percent in the latest Morning Consult survey) support citizenship for those brought to America by their illegal-alien parents as children and who know no other home.
But he didn’t stage his takeover of the Republican Party by gaining the support of those Republicans. No, Trump came to power in the GOP by consolidating the party’s extremes and then moving on the center, which was split among a dozen other candidates. And he did so in large measure by talking about immigration and immigrants in a startlingly hostile manner.
This gave him a reputation for politically correct plain speaking and a willingness to consider wild policy options—a deportation force and the construction of a 1,900-mile wall even through deep river beds—no conventional politician had or would.
And he gained the passionate support of all those who claimed the GOP had become a party of wimps mired in the Washington swamp, unwilling to bring the fight to the Democrats, unable to crush liberals. And what has he done over the past two weeks? He has struck deals with Schumer and Pelosi and gave those two signature Democrats almost everything they could have hoped for.
This is a potentially significant moment on the American Right, which is a far more complex agglomeration than either its leaders or its most hostile critics tend to acknowledge. Trump is abandoning his true believers in favor of an explicitly anti-ideological, anti-partisan approach—only a month after it appeared he was retreating into their loving arms.
He is not a systematic man. He is an improviser. It would be a mistake to see any kind of deliberate long-term strategy here. Last week Trump knew he wanted the debt-limit fight to go away and he made it go away with no fuss for three months. This week he knew he wanted to dispose of the DREAMer issue before it became a total pain and he made that happen, too.
Trump once said his followers would stand behind him even if he shot someone on Fifth Avenue. Becoming “Amnesty Don” is as close to firing that shot as anything any politician in recent times has ever done.
Three modest proposals.
Podcast: Who saw this coming? We did.
Yes, we told you so, and we say it again and again on the second of this week’s COMMENTARY podcasts. Noah Rothman, Abe Greenwald, and I attempt to examine the political menage-a-trois between Trump, Schumer, and Pelosi, whom it helps, whom it hurts, and the pain and agony of people who took Donald Trump at his word. Give a listen.
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A carney act.
We tried to warn you. We sifted through the rhetoric, dissected the policy pronouncements, and took Donald Trump far more seriously than he took himself. Especially when it came to then-candidate Trump’s over-the-top rhetoric in support of immigration restrictionism and border security, we said the Manhattanite who only recently converted to the GOP was simply playing a role. On Thursday morning, the president confirmed his critics’ assumptions.
At the risk of reveling in this reveal or offending those who subordinated their better judgment and common sense to a man who finally promised them their unrealizable ideal, we are obliged today to take an inventory of those warnings.
“The WALL,” Trump tweeted with cryptic urgency, “which is already under construction in the form of new renovation of old and existing fences and walls, will continue to be built.”
“Does anybody really want to throw out good, educated and accomplished young people who have jobs, serving in the military? Really!” the president added, addressing the children of illegal immigrants who benefit from Barack Obama’s deferred deportation program DACA. “They have been in our country for many years, through no fault of their own—brought in by parents at a young age. Plus BIG border security.”
To what was the president referring? On Wednesday night, Trump struck yet another “deal” with the Democratic leaders of the House and Senate, this time regarding immigration. “We agreed to enshrine the protections of DACA into law quickly and to work out a package of border security excluding the wall, that’s acceptable to both sides,” read a joint statement from Nancy Pelosi and Chuck Schumer that was released following their “productive meeting” with the president on Wednesday night.
A White House official told New York Times reporter Maggie Haberman that, while the statement fudges the details, Trump did not want border-wall funding tethered to DACA. “Trump veered toward Democrats on DACA after receiving tough coverage for backtracking on pledge to preserve it,” she revealed.
Anyone who was not so besotted with Trump’s gall and his willingness to reinforce their own hardline delusions on immigration saw this coming.
As early as August of 2015—just a few weeks after Trump descended the escalator—reporters were poking holes in Trump’s allegedly uncompromising stance on immigration. “You know, the truth is I have a lot of illegals working for me in Miami,” Trump told a group of young DREAMers during a Trump Tower meeting in 2013. “Can’t you just become a citizen if you want to?” he asked his petitioners repeatedly. When they said they could not, Trump confessed, “you’ve convinced me.”
That same month, the Trump campaign published a white paper outlining in broad strokes his immigration policy. It contained some laudable elements, like a nationwide E-Verify program, much of which had been boilerplate Republican immigration policy for years. But it also included nativist delights that were both irresponsible and unfeasible.
Trump’s plan would eliminate birthright citizenship in the 14th Amendment and would enforce deportation mandates against all illegal immigrants, including the children of visa overstays and border crossers. “We have to keep the families together, but they have to go,” Trump told NBC News.
As former Congressional Budget Office director Douglas Holtz-Eakin estimated, deporting the estimated 11 million illegal immigrants in America over the space of just two years would cost approximately $300 billion. Moreover, the removing of millions of productive Americans from the country would result in substantially reduced economic activity and create a recession. The red-hat crowd dismissed these warnings as the craven dissimulations of those who covertly support “amnesty” for all illegal immigrants.
This policy paper was Trump’s answer to what he derisively referred to as the “Schumer-Rubio” immigration reform bill of 2013, also known as the “Gang of Eight.” For Trump’s biggest fans, the obviously performative denunciation of this comprehensive effort was enough to earn their undying support even if they knew, deep down, he was only using them.
Of course, that white paper also indulged his supporters’ most vivid fantasy: The Wall. This was the most shameless of canards. Invoking a towering barrier of ever-increasing height, it soon evolved from a policy prescription into an applause line. Anyone who dared question the logistics or cost of such a barrier was accused of evincing a lack of zeal for the #MAGA cause. As Linda Chavez wrote for COMMENTARY in the spring of 2016, The Wall was pure fancy. She noted that the materials costs alone for such a projected would run in excess of $17 billion, to say nothing of the years it would take to survey the construction sites, perform environmental-impact studies, impound the land, reimburse the displaced, pay attorneys, and hire union labor to build the thing.
At best, Trump’s critics contended, the president would manage to reinforce existing border security measures, the strongest of which were included in the 2013 immigration reform bill the president so callously disparaged on the stump. All these warnings were disregarded.
By mid-2016, even Trump’s own campaign surrogates—stalwart supporters like New York Rep. Chris Collins and his eventual Energy Secretary, Rick Perry—were dismissive of the catechisms of The Wall. “I have called it a virtual wall,” Collins averred while also dismissing Trump’s “deportation force” as a “rhetorical” exercise. “Maybe we will be building a wall over some aspects of it; I don’t know.”
“It’s a wall, but it’s a technological wall, it’s a digital wall,” Perry said after conceding that Mexico would not be paying for or reimbursing America for the costs of any kind of construction on the border. “There are some that hear this is going to be 1,200 miles from Brownsville to El Paso, 30-foot high, and listen, I know you can’t do that.”
The Republican Party made a tradeoff when it nominated Donald Trump; a more liberal outlook on issues like health care and tax code reform for an unconventionally hawkish approach to immigration. Those of us who saw the real Trump, not the confection whipped up by his apologists and image-makers, knew that so much of his border hawkishness was an act. The dropping of that veil is a bittersweet moment; it is a reminder of the opportunities that were lost.
And what has it bought us?
Last Friday, September 8th, 2017, the national debt of the United States went over $20 trillion. This compares with an estimated GDP of $19.3 trillion. For the first time in 70 years, since the immediate aftermath of World War II, the national debt exceeds 100 percent of GDP.
In other words, in the last nine years, the federal government has borrowed more money than in the previous 219 years of the government’s existence. During those 219 years, we fought three wars of unprecedented size and ferocity, numerous small wars, and suffered through six deep and prolonged depressions, including the Great Depression of the 1930’s, the greatest economic catastrophe in American history.
In the Civil War, the national debt went from $60.8 million to $2.7 billion, but it saved the Union. In the 1930’s, the debt went from $16.1 billion to $42.9 billion, but it saved the American economy. In World War II, the debt went from $42.9 billion to $269.4 billion, but it saved western civilization.
But what have we gotten for this massive latter-day rise in public indebtedness?
Exactly nothing, unless vote-buying is a virtue. Since 1970—a near half century of no great wars, no deep and abiding depressions, and extended periods of great prosperity—the national debt has gone up by a factor of 54. GDP in that period rose by a factor of only 19.
Until the 1930’s deficit spending was regarded, by both parties, as an evil, if sometimes an unavoidable one. Once the cause of the deficit spending—wars and depressions—ended, the government paid down its debt as quickly as possible. It ran 28 successive annual budget surpluses after the Civil War, reducing the debt from $2.7 billion to $961 million, while the American economy soared. After World War I, we had 11 years of surpluses, reducing the total debt by nearly 40 percent.
After World War II, while we did not pay down the debt, its increase was sharply curtailed, rising from $269.4 billion in 1946 to $286 billion in 1960, an increase of only six percent. We even ran surpluses in 1951 and 1952, at the height of the Korean War. The American GDP in those years more than doubled. This reduced the debt as a percent of GDP (the important measure of the size of the debt) from 130 percent to 57.7 percent. The debt continued to decline as a percentage of GDP in the 1960’s to 37 percent.
But budgetary discipline vanished from Washington, D.C., with the so-called Budget Control Act of 1974. It effectively removed the president as a major player in making budget decisions. (He still submits a proposed budget every year, but Congress often declares it “dead on arrival.”) The budget was now in the hands of 535 members of Congress, not one of whom represented the national interest. Instead, they represented the parochial interests of 50 states and 435 districts. Those interests are served by ever-increasing flows of federal money. And politicians are always first, last, and always in the re-election business. Self-interest forces them to bring home the bacon.
Ending the seniority system, whereby the senior member of the majority party in each congressional committee was automatically chairman, greatly exacerbated the situation. The senior members were, almost by definition, in safe seats and so could exert spending discipline for the sake of the country as a whole. Elected chairmen had to promise goodies to get elected.
And so the United States went on a gigantic, four-decade-long spending spree, not to fight a great war or depression but largely to improve the re-election prospects of members of Congress. And they paid for it with our grandchildren’s money.
Are there solutions? Sure, and simple ones, too. But implementing them won’t be easy for they involve curbing the powers of politicians and political institutions. And as that great political scientist James Madison explained, “Men love power.” They don’t surrender it easily.