I hadn’t read Newsweek’s pledge piece, by Ben Adler, until just now. It’s hostile, of course. Two passages stood out. First:
Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.
That’s insane. 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. The Pledge provision in question is “extraconstitutional” only in the trivial sense that the Constitution neither requires nor forbids it. And the provision is better understood as a spur to congressional self-restraint than as a “limit” on congressional power.
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. The pledge contains no answer to this conundrum other than a vague promise to “expand state high-risk pools, reinsurance programs and reduce the cost of coverage.”
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.
Update: Reader D.U. quotes Marbury: “‘From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.’ Marbury, then, indicates that Congress has a duty to consider the constitutionality of its actions.”