The Virginian Patrick Henry, as you recall, had some nice things to say about liberty.
I can’t help thinking that somewhere today the first post-colonial governor of Virginia is smiling because his state has once again stood for American liberty. I refer, of course, to the suit against ObamaCare filed by the attorney general of that state. Yesterday a federal district judge ruled that citizens can’t be forced by the federal government to buy health insurance.
The part of the Patient Protection and Affordable Care Act known as the individual mandate is therefore ruled unconstitutional. The ruling is a boost for those who want to see ObamaCare overturned; it is also good news for those who believe that there are constraints on the power of the federal government.
A piece in today’s Wall Street Journal sees the consequences for American liberty in the decision and the coming battle over it (it will make it to the Supreme Court):
“The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision [the individual mandate] would invite unbridled exercise of federal police powers,” Judge Hudson writes. “At its core, this dispute is not simply about regulating the business of insurance-or crafting a scheme of universal health insurance coverage-it’s about an individual’s right to choose to participate.”
So the issue is joined, and no doubt with historic consequences for American liberty. For most of the last century, the U.S. Supreme Court interpreted the Constitution’s Commerce Clause as so elastic as to allow any regulation desired by a Congressional majority. Only with the William Rehnquist Court did the Justices begin to rediscover that the Commerce Clause has some limits, as in the Lopez (1995) and Morrison (2000) cases.
Judge Henry Hudson, who wrote yesterday’s ruling, did not issue an injunction against the implementation of the law (which, at any rate, isn’t scheduled to go into effect until 2014, though the financial burdens are already being felt). It was in that way a modest decision. Richard Epstein, the distinguished law professor, however, doesn’t think the law can be put into effect without that pesky mandate:
In making this position, the district court rejected the view that the individual mandate was a necessary and proper offset to the congressional decision to require all insurers to take customers without regard to their preexisting conditions. In the government’s view, the two issues are the opposite side of the same coin. If the system is going to give some individuals a subsidy, it must find a way to tax someone else to provide that subsidy. Hence the individual mandate.
Read Epstein’s whole piece on The Corner.
By the way, you’re going to be hearing a lot about automobile insurance. If the government can make drivers buy it, why can’t it make us all buy health insurance? The Daily Caller has a succinct explanation:
The Heritage Foundation has explained the distinctions between the two mandates. A Dec. 9, 2009 paper written by Randy Barnett , Nathaniel Stewart and Todd Gaziano explained the differences in that 1) There is a distinction in the powers of the state and federal governments, 2) Automobile insurance requirements impose a condition on the voluntary activity of driving; a health insurance mandate imposes a condition on life itself, 3) State auto insurance requirements are limited to those who drive on public roads and 4) States require drivers to maintain auto insurance only to cover injuries to others, not themselves or their property.
Rasmussen reports that 60% of likely voters are at least somewhat in favor of repeal. Here’s what the ruling does for this majority: it emboldens them, giving the sense that the quest is not hopeless.