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Critical Condition

NRO’s health-care blog.

Obamacare Is Unconstitutional



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In its first serious court test, the most unpopular provision in Obamacare — the individual mandate — has been declared unconstitutional on two crucial grounds.

First, U.S. District Judge Henry E. Hudson ruled that Congress exceeded its constitutional authority to regulate interstate commerce by compelling people “to involuntarily engage in a private commercial transaction.”

Second, he said the Obama administration can’t argue after the fact that the mandate is a tax and therefore within Congress’s constitutional taxing authority. “The Court is unpersuaded” that the penalty for not purchasing insurance is a “bona fide revenue raising measure enacted under the taxing power of Congress,” he wrote from his bench in the Eastern District of Virginia.

Virginia attorney general Ken Cuccinelli led the commonwealth’s case against the law. It was a victory for him when Judge Hudson declared that the mandate to purchase health insurance represents an “unchecked expansion of congressional power” that “would invite unbridled exercise of federal police powers.”

Cuccinelli had argued that the Commerce Clause of the constitution does not grant Congress the authority to force people into economic activity. Judge Hudson declared that the mandate is “neither within the letter nor the spirit of the Constitution.”

This is the tall pole in the tent of Obamacare. While Judge Hudson did not halt implementation of the law or declare the whole thing invalid, supporters and opponents alike argue that losing the individual mandate could cause the whole flawed structure to collapse.

In his 42-page opinion released today, Judge Hudson caught those who drafted the law at their own game: He cited earlier versions of the legislation in both the House and the Senate that explicitly referred to the penalty for not complying by the “politically toxic term ‘tax’.” But they substituted the term “penalty” for the word “tax” in the individual-mandate section of the final law.

“A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress,” especially since the term “tax” is used in numerous other places in the law regarding taxing medical devices, employer-sponsored health insurance, high-income taxpayers, and indoor tanning services.

This “taxing” issue likely will be key to the Florida court decision that will be argued this Thursday. Twenty states and the National Federation of Independent Business are challenging the individual mandate as well as the government’s authority to dictate health-coverage expansions to the states.

Federal Judge Roger Vinson of Florida declared earlier that “Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an ‘Alice-in-Wonderland’ tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.”

The White House is, predictably, arguing that the decision against them in the Virginia case isn’t a big deal because numerous other challenges to the law have been thrown out by other judges.

But none is as important as this one and the major one to come in Florida. Most of the other cases have been thrown out on “standing” claims or by judges with a very different interpretation of the Constitution. Judge George Caram Steeh of the U.S. District Court for the Eastern District of Michigan, for example, said that the individual mandate is needed so the other provisions of the law can work.

Numerous experts argued while Obamacare was being debated that the individual mandate is unconstitutional. The White House and Congress chose to ignore them and, in their hubris, decided they could not only reengineer one-sixth of our economy but rewrite the Constitution in the process.

The astonishing thing is that virtually the entire health-care establishment bought into this. The health-insurance industry staked its future on the individual mandate as necessary to make all of the other provisions of this Rube Goldberg monstrosity work.

Was there ever anyone at any of these meetings who raised his hand to say that maybe it wasn’t a good idea to pass a major piece of legislation that was premised on violating the Constitution?

Judge Hudson did not strike down the whole law but determined that the individual mandate and associated provisions could be declared unconstitutional — severing the “problematic portions while leaving the remainder intact.” He concluded that the law “embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care — over 400 in all.”

This is a major victory for opponents of Obamacare, and the judge made the correct constitutional decision.



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