THE UNRAVELING OF OBAMACARE

December 14, 2010

Score on point for individual liberty.

U.S. District Court Judge Henry E. Hudson, from the U.S. Federal Court in Richmond, Virginia issued a 42-page opinion in which he invalidated a provision in the Patient Protection and Affordable Care Act, which Congress passed in 2010.

Since Barack Obama took office, the matter of what is considered "Constitutional" and what isn't appears to never cross his mind. The Constitution is, in his thinking, just a document written by old white men wearing wigs and many owning slaves. To the average liberal, it is outdated, needing to be re-interpreted to meet the demands of the 21st century.

To Barack Obama, the Constitution is a pesky thing, much like the flies that seem to annoy him at various times during press conferences and interviews.

What is minor to Obama and Speaker Nancy Pelosi to not so to Judge Hudson. His decision to strike the mandatory requirement to purchase healthcare insurance is remarkable, if only for common sense.

Not many decisions handed down by federal judges are remarkable in this way, but Hudson's is. He says the Constitution forbids Congress to require/force/compel/coerce/press-gang citizens into buying health insurance.

Judge Hudson squints at the Constitution, likewise at all reported decisions from the federal appellate courts. He can't find anything authorizing Congress to require/force, etc., the doing of a deed the citizen may in fact oppose.

He thinks, in other words, the federal government can't do anything it chooses to do. As Ben Stein would say on a Visine Commercial "Wow!"

The new federal health care scheme, conventionally called Obamacare, is premised on the government's right, as the government sees it, to turn the existing health care arrangement inside out and decree a new system -- as Kublai Khan decreed his stately pleasure dome.

The goodness or badness of the federal approach is not the issue here -- not in the abstract terms of would-it-work. The issue is, has Congress the constitutional power to do all this? That's to say, without an amendment conferring that power. Judge Hudson says no.

He's almost certainly right. Being right in constitutional construction, together with two bucks, will get you a cup of Starbucks coffee. For decades -- specifically, since the late New Deal -- the federal courts have stretched the constitutional language far enough to cover practically anything enacted by Congress. To Judge Hudson, the language seems badly overstretched. He knows the Supreme Court will have the final say. Nonetheless, his 42-page decision sets the stage for contemplation of the lassitude, the laziness, with which our rulers in Washington contemplate language intended not to expand but rather to restrain their powers.

Hudson, hearing the case, asked why an order to buy health insurance isn't like an order to eat asparagus. Both could be construed as " beneficial" to us, couldn't they? Then why can't you do it?

For the same reason, I couldn't reconstitute the Southwest Conference football, boon though it would be to fans that don't understand (as I do!) how good it would be for them. Neither I nor anyone else has power of the sort necessary to get the job down. Free speech, yes. Coercive power -- the power of the handcuff, shackle and leg iron -- no.

The Constitution carefully, prudently defines what the federal government may do. After deleterious experience with a British crown and Parliament desirous of doing "good things" for the colonies, irrespective of colonial preferences, the Founding Fathers wanted raw power checked and restrained. They couldn't anticipate every possible power grab that the future might inspire, but knowing human nature as they knew it, they anticipated greed and overreach would march with valor and kindness.

The present Congress -- soon to lose further sway over us, praise Jupiter -- doesn't worry about such trifles as proper, duly delegated authority. It wants results, actions and deeds. To say thus-and-so should be is to justify the act of putting thus-and-so in place.

Then there's Judge Hudson, one of three federal judges thus far to rule on Obamacare. The other two said to Congress fine, go head, tell the peasants what to buy, how much to pay, etc. Judge Hudson says, in essence, such notions contract rather than expand liberty. "Urge," in other words, isn't the same thing as "do it, dammit." What a great thing to hear such good sense from a federal judge's mouth. Let us savor the unaccustomed flavor while it lasts.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.