The Amputated Mandate

National Review Online
Tuesday, December 14, 2010

For supporters of Obamacare, Judge Henry Hudson’s decision yesterday that the individual mandate is unconstitutional was a firebell in the night, to borrow Jefferson’s phrase.

They had dismissed arguments that the mandate is unconstitutional as ravings from the right-wing fringe, but here is a well-reasoned, 40-page decision from a federal district-court judge saying the mandate does indeed exceed the federal government’s powers. It’s yet another sign that the legitimacy of the law is in doubt, making it vulnerable to the repeal that supporters of the law have also wrongly dismissed as a conservative fantasy.

The mandate will entail an “unchecked expansion of congressional power” and will “invite unbridled exercise of federal police powers,” Judge Hudson writes. While the Commerce Clause has routinely been used to justify the erosion of economic freedom, Judge Hudson concludes that it could not be used to justify a national health-insurance requirement, arguing that Obamacare’s “broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.” In other words, the mandate is an unprecedented federal power grab that will radically change the relationship between Americans and their government by making the purchase of a (heavily regulated) commodity a condition of U.S. citizenship. “A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product,” Judge Hudson wrote, “notwithstanding its effect on interstate commerce or role in a global regulatory scheme.”

The Obama administration has tied itself in knots trying to defend what it now calls — in a phrase that is so ham-handed it doesn’t rise to the level of Orwellian — the “individual responsibility provision.” During the Obamacare debate, President Obama insisted that the fine to enforce the mandate wasn’t a tax. Now that the 16th Amendment is convenient to their legal argument, the administration lawyers say it’s a tax after all, even though the law refers to it as a “penalty.”

In invalidating the mandate, Judge Hudson chose not to strike down the entire law or stay parts of it, noting that “the final word will undoubtedly reside with a higher court.”

Everyone now acknowledges that to be true (an even stronger case against the law is being mounted in Florida by more than 20 state attorneys general). But conservatives can’t afford to rely on the courts and the wisdom of Justice Anthony Kennedy — the swing vote if the Supreme Court closely divides — to save us from Obamacare.

There are three reasons for that. First is that we the people ultimately are the vindicators of our liberty. The mandate highlights the coercive and obnoxious character of Obamacare as a whole. The whole scheme works, to the extent it works, only if people are forced to buy a product they would not buy on a free market. And the whole scheme — not just the mandate — is worlds removed from the limited government envisioned by the Founders. It is up to us to be the first line of defense for that vision of limited government.

Second, the courts are unreliable. They have already gone so far in torturing the Commerce Clause to justify any federal regulation that it is by no means a slam-dunk that the Supreme Court will recoil from this newest expansion of federal powers.

Third, the mandate is not all of Obamacare. It is crucial, as noted above, especially to the insurance regulations, but even if the mandate is thrown out — and the prohibition on denying coverage to people with pre-existing conditions becomes unsustainable — a vast increase in the federal role in health care remains. Half of Obamacare’s estimated cost is plowed into an expansion of Medicaid, which no judge is going to find unconstitutional.

Remember: The ultimate goal of the Left is to make the public as dependent as possible on the federal government for their insurance. There are many ways to achieve this end, including the use of nominally private companies, that will pass muster in the courts. This push can only be stopped by effective political resistance on all fronts, both inside and outside Washington.

Galen Institute president Grace-Marie Turner recently listed several good options for the states. Legislators could establish minimal, market-oriented health-insurance exchanges, the way Utah has. These exchanges would serve as a “firewall” against the heavy-handed federal intervention threatened by Obamacare. Meanwhile, governors could request that their federal Medicaid funds be delivered in the form of a capped amount with flexible spending guidelines. And, of course, the House should vote to repeal Obamacare in the new year, setting up a political debate over the bill’s fate that we hope will end in the election of a conservative president in 2012 committed to signing a repeal.

Judge Hudson’s decision is bracing — it’s always welcome to see a federal judge acknowledging that our constitutional architecture creates limits on the federal government. As the case winds its way toward the Supreme Court, the courts will do their work, for better or worse. It’s much more important that we do ours.