John Cochrane, of the U. of Chicago and the Cato Institute, has written an excellent piece: “The Real Trouble With The Birth-Control Mandate,” carried in the 2/9/12 issue of the Wall Street Journal. He provides two major insights:
- the essence of that Mandate is the assertion of governmental control over decisions that have heretofore been considered reserved to individual citizens and beyond the scope of governmental powers; and
- the “pre-existing conditions crisis,” which became a critical rationalization for the ramming of ObamaCare through Congress, was a fake crisis, in that it was largely a creature of our tax laws and could have been easily solved without our having to adopt ObamaCare.
As Cochrane observes, the intensity of the reaction to the Birth-Control Mandate has been based primarily upon the fact that the particular area of our citizens’ private lives that has been invaded by it is their constitutionally guarantied right to be free from state prohibition of their free exercise of religion. It seems pretty clear that when the executive branch of the federal government (in this case, HHS) issues an order (which is, literally and legally, merely a clarification or explication of a law that has been passed by Congress) that compels employers (be they individuals or entities) to take an affirmative action that their (or their principals’) religion deems sinful and proscribes, that action by the government amounts to an unconstitutional prohibition of the free exercise of religion. That is a big, big deal. But in the larger sense, even that is not as big a deal as the expansion of governmental control that it represents.
Between the notorious “Individual Mandate” of ObamaCare and the new Birth-Control Mandate, you have the elements of a fundamental revolution:
- The Individual Mandate (if deemed constitutional under the Commerce Clause or otherwise) means that the government can compel anyone to buy a product or service he or she does not want to buy; and
- The Birth-Control Mandate (if it survives a constitutional challenge) means that the government can compel anyone to offer a product or service he or she or it does not want to sell or provide.
By cleverly exploiting both of those powers in tandem with its power to re-distribute the country’s financial resources via fiscal policy and targeted expenditures, the government could effectively control and direct virtually every aspect of human existence. (While the government might evade a constitutional challenge to the ‘must-offer’-type of mandate by offering the product or service itself or through a co-opted vendor, that type of de facto nationalization of private-sector functions would be, if anything, even more odious.) As a consequence, the entire notion of individual freedom in this country, as understood throughout all but our very-recent history, would have been insidiously eliminated. These twin Mandates, while appearing to be political in nature, are actually a bold legal maneuver; if the courts fail to declare them unconstitutional, the Mandates will collectively establish a firm legal foundation for virtually everything necessary for the implementation and operation of a totalitarian state.