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Obamacare suffers first big setback

Freedom New Mexico

A U.S. district judge in Virginia, Henry E. Hudson, a George W. Bush appointee, ruled Monday that the individual coverage mandate in the Patient Protection and Affordable Care Act of 2010 — otherwise known as the new federal health care law, or Obamacare — is unconstitutional. That is a sound decision, but it hardly ends the matter. This decision no doubt will be appealed by the government to the 4th U.S. Circuit Court of Appeals, and there are about 20 other challenges to Obamacare pending in different courts.

Ultimately all the cases are likely to be consolidated and heard by the U.S. Supreme Court after a year or so of lower-court wrangling.

The individual mandate, requiring that every adult American purchase some approved level of health insurance (or pay a fine), is a tiny part of the 2,300-page bill, but it is a key to financial viability because it both expands the base of payees and enlarges the risk pool. Most authorities agree that the costs of health care reform simply don’t pencil out as affordable without this mandate, which imposes costs on individuals that are not counted as direct costs to the government. If the Supreme Court invalidates the mandate, it will not kill the law, but will seriously affect its implementation.

The Obama administration relies on an expansive interpretation of Article 1, Sec. 8, of the Constitution, which empowers Congress to “regulate commerce with foreign Nations, and among the several States.” The original purpose of this power was to prevent states from erecting protectionist laws against goods and services from other states, thus establishing the U.S. internally as a free-trade zone. During the New Deal of the 1930s the clause was used to authorize an expanded agenda of commercial and other regulation. The Supreme Court in recent years has gone back and forth on just how expansive the commerce clause power is.

The health care law goes well beyond previous interpretations to declare that a person’s decision not to engage in commercial activity (by not purchasing health insurance) affects the national scheme the law imposes, so the government can force people to purchase a product from a private company. Such an interpretation would put no commercial or other activity beyond the national government’s power, eliminating even the pretense that we have a government of limited powers.

One hopes the courts will keep the Constitution from becoming a dead letter.