Conservatives' Nonsensical Defense of the Republican Pledge

National Review's Ramesh Ponnuru attacks my take on the House Republicans' "Pledge to America." It's funny to see National Review going after critics of the pledge. You would think, after its slobbering editorial drew jeers, and questions about coordination with the House Republicans, from fellow conservatives that it might be hesitant about throwing stones out of the "biased take on the pledge" glass house. But shameless hypocrisy is a hallmark of the pledge and its proponents, so I guess it should come as no surprise.

Ponnuru defends the proposal to require every bill to be certified as constitutional before it can be voted on. He writes:

There’s nothing—nothing in the Constitution, nothing in Marbury v. Madison, nothing even in Cooper v. Aaron—that suggests that congressmen cannot consider the constitutionality of laws while voting on them. That they can do so, which one would have hoped would be a banal idea, does not even challenge judicial supremacy: The courts can still be the final arbiter of constitutionality ... And the provision is better understood as a spur to congressional self-restraint than as a "limit" on congressional power.

Of course Congress can, and should, determine that a bill is constitutional before passing it. That's what congressional debate is for. Making the obvious point that Congress should endeavor not to pass unconstitutional legislation is indeed, as Ponnuru hopes, banal. But it's so banal that it raises the question as to why this provision is included. If, as Ponnuru suggests, all Congress needs is a "spur" to "congressional restraint," then creating a new mechanism for preapproval would seem unnecessary. Couldn't Republicans instead just pledge not to pass anything unconstitutional?

The problem is that Republicans seem to believe that Democrats will pass unconstitutional legislation when in power and they do not trust the courts to carry out their duty to overturn such laws. Hence, they wish to create some vaguely defined board in Congress with the power to prevent legislation from coming to a vote if this group of (political?) appointees deems it unconstitutional.

The most troubling aspect of this whole notion is the idea that constitutionality is a subject of clear, scientific determination. That kind of simple-minded approach to constitutional interpretation is incapable of keeping pace with the demands of a changing society and complicated world. Different experts will reach different conclusions as to what is or isn't constitutional. That's why we have a court system set up hash out these disputes. If the constitutional vetting team makes decisions through a partisan or overly reductionist lens, it might preemptively throw out bills that would have passed judicial review. Maybe this would not bother Ponnuru when the subject is legislation to ban pay discrimination, but how would he feel if the country is attacked and President Jeb Bush wants a host of new surveillance powers that his congressional constitution team rejects as a violation of the Fourth and Fifth amendments?

The courts can only be the final arbiter on the constitutionality of legislation once it has been passed. If it can't get out of Congress because Congress's internal preapproval judge would not let it come to a vote, then this is—rather curiously for a movement that rails against activist judges who undemocratically make laws—taking power away from elected officials and placing it in the hands of bureaucrats.

Here's my other passage that put a bee in Ponnuru's bonnet:

"Curiously, there is one major provision of health-care reform—prohibiting insurance companies from denying coverage to people with preexisting conditions—in their list of proposals. Such a prohibition is economically infeasible without the individual mandate that health-care reform included. If you force insurers to accommodate those with prior conditions and not the young and healthy, premiums will go up."

Ponnuru responds:

"Adler didn’t read carefully, and a correction is in order. Whether wise or unwise, the Pledge’s regulation of insurers’ treatment of preexisting conditions is not the same as Obamacare’s regulation, and it does not require an individual mandate."

Sorry, but no correction shall be forthcoming because Ponnuru misunderstands my analysis, although I take full responsibility for wording it poorly. I'm well aware that the pledge contains no individual mandate. Indeed, that is precisely my point. If you believe, as the majority of the American public does, and congressional Republicans appear to, that people with prior conditions should be able to buy health insurance, and you legally require health insurance companies to offer them coverage, you are creating a problem for the insurers. People with prior conditions are expensive to insure. Either their insurance will be prohibitively expensive to buy, or everyone's rates will go up in order to cover their costs (which would drive the people who are profitable to insure—the young and healthy—out of the market altogether). If you wish to enact this requirement you must guarantee to the insurers that the more profitable consumers of insurance will also buy into the pool, thus cross-subsidizing the high-risk customers and keeping the average cost of buying insurance down. This is not an ideological point; it's simply an induction that anyone with a basic understanding of free-market capitalism can make. So I made a wording error in the last sentence: I should have written "and do not force the young and healthy to buy insurance." But, as my previous sentence about the necessity of an individual mandate should have made clear, I am not criticizing the pledge for including an individual mandate, I am criticizing the pledge for not including one.

Now, if you are a true conservative with the courage of your convictions, you can argue that we should have no coverage for preexisting conditions nor should we have an individual mandate. But the two are inseparable. That's why when Mike Huckabee came out against covering the sick he analogized it to buying fire insurance after your house burned down. You can't let people do that, because the cost of insurance would go up astronomically. Unless, that is, you require everyone to buy in at the front end. Pointing out that Republicans are incoherently and irresponsibly attempting to have their cake and eat it too, by calling for only the popular half of a regulatory regime that will not work without the other half in place, is no rejoinder at all. So, I pose the question directly to Ponnuru: with a requirement to cover people with prior conditions but no requirement that healthy people buy insurance, how will you keep premiums down?

While we're on the subject of Republicans trying to have it both ways, I'd like to know what an ostensibly independent conservative magazine like National Review makes of the fact that the pledge calls for tax cuts and increases in military spending but for spending cuts that are nowhere near sufficient to offset even those proposals, much less eliminate the current deficit projections. Does Ponnuru want to give Republicans a pass on planning to run up more debts, as he apparently does for their plan to drive up insurance premiums?