Tuesday, December 14, 2010

Ah, yes - a victory for limited government

Judge Hudson's decision in the Virginia case against Obamacare strikes a blow for one of our most important founding principles - that our government is limited. Liberals seem to think that there is very little that the government can't do when it comes to regulating business, commerce, our personal interactions and choices. When the health care reform bill was first passed, Nancy Pelosi ridiculed the idea that there was anything problematic about its constitutionality. Even now, as Tom Maguire points out, liberals seem gobsmacked that anyone would think there was something unconstitutional about the individual mandate.

I just wish that this decision had come out about 10 days earlier just when my AP Government class was discussing federalism and tracing the line of Supreme Court cases that have expanded Congress's power and then set some limits on that power. Judge Hudson's decision fits right in with the questions we'd been discussing.
Judge Hudson's opinion is particularly valuable because it dispatches the White House's carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it's permissible under the broader taxing power for the general welfare; and if not that, then it's viable under the Necessary and Proper clause; and if not that, well, it's needed to make the overall regulatory scheme function.

But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can't now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."

Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
Here's a question for liberals: is there anything Congress cannot do under the Commerce Clause? If their argument is that Congress can force people to buy health care insurance because their lack of purchasing that insurance affects commerce, well every decision that we make to do or not do something ultimately would have an effect on commerce. If that is true, then just forget about James Madison's vision of a government of limited, enumerated powers. That is just so 18th century. Today, unless Judge Hudson's characterization of the case holds, we're in the age of Leviathan, not of Madison.