A federal judge declared parts of Obamacare unconstitutional yesterday. Declaring that the government cannot force us to buy health care should be enough to kill the entire bill by gutting the financing of it (as written). There is the legal analysis we could make about the bill; there is also a constitutional argument we could make. Then there’s public opinion. Scott Rasmussen reports that now 60% want it repealed.
U Chicago professor Richard Epstein throws some caution in our direction. Here is some of his legal analysis:
The key successful move for Virginia was that it found a way to sidestep the well-known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.
At this point, no district court judge would dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.
It is just that line that controls this case. The opponents of the individual mandate say that they do not have to purchase insurance against their will. The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case, it could be done in all others.
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.
You can read the 42-page ruling here. Eric Holder and Kethleen Sebelius take to the op-ed pages today and–what is astonishing to me–they don’t really make one legal or constitutional argument in favor of the law. Such an omission seems to acknowledge that the law is unconstitutional.