DANIEL HENNINGER
Maybe the United States dodged a bullet this week. Make that a deep-penetration bunker buster into the original idea of America. On Tuesday, the justices of the Supreme Court sounded, on balance, to be disposed against affirming the Obama health-care law's mandate.
The Obama administration's lawyers argued that the mandate to purchase health insurance is a routine extension of the Commerce Clause, which in the 1930s became the most potent sentence in the U.S. Constitution. It is not a certainty that Tuesday's discussion of the ObamaCare mandate means it will be overturned. It's still worth thinking about the implications if the court affirms the law's individual mandate. Should that happen in June, two things would follow: The Commerce Clause's authority would be unfettered. Big as that is, the implication of an unfettered Commerce Clause is larger: That will be the day the United States becomes France.
Like the U.S., France also had "liberté" in the short version of its founding idea. Democracies always begin in liberty, but they don't always keep it. France is in economic decline today because the structure of its government is so severely centralized. An anecdote describes what eventually such centralization does to national hope.
A story in the New York Times a few weeks ago reported on two small towns on the border between France and Germany. French Sélestat, in Alsace, has an unemployment rate of 8% and a youth unemployment rate of 23%. Across the border in Emmendingen, the rates are 3% and 7%. (The U.S.'s own unemployment rates these days are closer to those in Sélestat.)
Deep in the article, the mayor of Sélestat explains why this is so. In Germany, he said, local and state governments can set many of their own rules. In France, "the national Education Ministry wants to keep all control." The Affordable Care Act is our road to France's ministry of education. For its designers, ObamaCare is their administrative coup de grâce.
But something more is in motion with this case than a potential, once-and-for-all movement of government authority from the nation's parts to its center. As important is who exercises control. The answer is: the mandarins.
Mandarins are the intellectuals who design and order legally enforceable public systems within which the rest of the population resides, or tries to. French policy mandarins are the most celebrated in the world. Their most ardent admirers in America are the people who made the Obama health-care law.
The Affordable Care Act is not merely a "law" that the Supreme Court argued over this week. It is a massive Rube Goldberg contraption. Its 2,700 pages include every pipe, whistle and valve that the nation's academic health-care economists and doctors have soldered together from infinite studies of hospital data. The new machine even has its own boiler-room crew, the 15 health-care academics of the Independent Payment Advisory Board, who will monitor and adjust the flow of medicine through the national health-care pipelines.
They say their magnificent machine will work for everyone in America only if everyone in America is inside of it. This was Solicitor General Donald Verrilli's argument before the Supreme Court on behalf of the law's mandate. This is what the Catholic hospitals discovered when the ACA's designers pulled the sheet off the new machine.
Why are we so close to falling into the grip of an American mandarinate of the centralizing sort now smothering France? Our version of these controllers came to life in the 1960s. They are a byproduct of the passage in those years of a succession of federal rights and entitlement laws. The former were more admirable than the latter. But the singularly bad effect of that period on the American political psyche was the sense of moral triumphalism that spread among liberal policy intellectuals. From this certitude came the belief they could do anything they wanted to the booboisee in the untrustworthy states.
And they did, for example writing an Endangered Species Act whose coverage mandated federal government protection for such minutiae as the delta smelt. Only a mandarin would insist on this.
For the political left affiliated with Barack Obama—in the bureaucracies, the punditocracy and the courts—objections to these expansive laws on liberty grounds, then and now, are mainly arguments over abstractions. The liberty objections simply don't matter. ObamaCare itself is a masterpiece of mandarin abstraction. Yet 67% of polled Americans believe this masterwork's mandate is unconstitutional. What are these people thinking?
In the closing pages of "The Ideological Origins of the American Revolution," Bernard Bailyn summarized the core concern about the Affordable Care Act's reach that is trying to find its voice today: "At the Philadelphia convention, with exquisite care and with delicate nuances, they devised a complex constitution that would generate the requisite power but would so distribute its flow and uses that no one body of men and no one institutional center would ever gain a monopoly of force or influence that would dominate the nation."
We shall see.
Write to henninger@wsj.com
A version of this article appeared Mar. 29, 2012, on page A17 in some U.S. editions of The Wall Street Journal, with the headline: We're Not France, Yet.
Copyright 2012 Dow Jones &
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