There are a number of constitutional issues with the health care "reform" legislation, but none may be more important to implementing it than maintaining the individual mandate. There is no doubt that this is not the end of the issue. The Obama administration will appeal the ruling and eventually it will end up in the Supreme Court. However, that may not be a hospitable venue for the arguments that Obama will make before the court to protect this provision.
In all likelihood the Supreme Court will be evenly split between the conservative [Roberts, Scalia, Alito and Thomas] and liberal [Ginsburg, Sotomayor, Kagan, and Breyer] wings of the court, with Kennedy as the swing vote. Kennedy has shown a surprising propensity of late to side with the conservative wing (of the 23 cases decided by a 5-4 margin during the 2008-2009 term, Kennedy was in the majority 16 times, and of those 16 he sided with the conservative wing 11 times). Kennedy's was the crucial vote in the 2010 decision in McDonald v. Chicago, which extended to the states the holding in the 2008 case District of Columbia v. Heller (in which the court ruled that the handgun ban was unconstitutional), and expanded it to include the holding that the right to keep and bear arms is an individual right.
Other factors that may come into play is the fact that Kennedy has reportedly told friends and family that he does not plan on retiring until at least the end of Obama's first term. This may be indicative of his belief that the Obama administration has consolidated too much power in the Executive Branch and needs a foil in the judiciary. Obama was extremely insulting and demeaning of the court in this year's State of the Union address, in which he publicly lashed out at the Supreme Court for its decision in the Citizens United case, a case in which Kennedy delivered the majority opinion. Making matters worse for Obama, it is very likely that newly-seated liberal justice Elena Kagan will be forced to recuse herself from any cases involving ObamaCare due to her work on behalf of the Obama administration as Solicitor General.
Once it works its way through the appellate process to the Supreme Court, Obama still has a tough battle in proving the constitutionality of the law. For Obama, it is critical that the individual mandate be upheld. By his own admission the practical application of the law is unsustainable without it.
The Obama administration has argued that individuals can be required to purchase a product (engaging in a commercial transaction) because of the necessity of providing healthcare for all. However, a person who does not actively participate in commerce (making a voluntarily purchase of health insurance) can not plausibly be said to be participating in commerce under Article 1, Section 8, Clause 3 of the Constitution -- the Commerce Clause -- and no Supreme Court precedent states otherwise. Without a clear authorization in the U.S. Constitution proactively affirming a power granted to government, it does not exist (see the 10th Amendment, which states that all powers not specifically granted to the federal government by the Constitution are reserved to the states or to the people.). In other words, it is up to the Obama administration to show where that power is granted, not to those opposed to it to show where the power is restricted.
The Obama Administration has argued that those powers are granted under Article 1, Section 8, Clause 18, also known as the Necessary and Proper clause. Unfortunately (for Obama, not the American people), the Necessary and Proper clause can only legally be applied when the underlying law or statute is constitutional. If the individual mandate is not upheld under the Commerce Clause, then the Necessary and Proper Clause can not be invoked.
Finally, there is the matter of funding. The individual mandate is the lynchpin in this law...without the individual mandate the whole thing collapses. It collapses because without the ability of the government to force the young and healthy to pay into the system to subsidize the much heavier costs of the older and sick, the funding is inadequate. It is, in essence, a Ponzi scheme, just like Social Security, and both are destined for the same end.
The Obama administration has argued alternately that the individual mandate was either a tax or a penalty (their stance changed after the law was passed and began to be litigated). The judge rightly ruled that the individual mandate could not be argued as being one thing before the legislature and the people, and another thing before the court. From a legal standpoint, there is a significant difference between a tax and a penalty. The penalty provision in Obamacare is just that...a penalty (it is assessed against individuals who refuse to purchase insurance), and therefore is unconstitutional (because of its application to only those individuals who choose not to purchase health care).
In essence, the Obama administration is arguing that providing health care for all is a proper role of government (for the general welfare, you might say), and therefore ObamaCare is a necessary and proper action on the part of government to achieve that end. In order to implement the mechanism to achieve that goal, ObamaCare, every American citizen will be required to purchase health insurance, because a failure to purchase insurance by some increases the cost over a smaller number of payers to a point at which the burden can no longer be borne. Therefore (in a convoluted rationale), the act of NOT purchasing health insurance is in and of itself having an effect on interstate commerce. You with me so far? So in order to achieve a goal which is desired by government, Americans can be forced to purchase insurance.
Yet if this reasoning stands, what possible logical limitations can be instituted? If government can force us all to purchase health insurance to reduce the budget burden on the federal government, then can it not also demand that we all buy Chevy Volts in order to reduce overall gasoline consumption and therefore reduce our dependence on foreign oil? Or force us to buy more fruits and vegetables in order to make our diets healthier and so reduce the cost to government of treating obesity, heart disease, diabetes and the like?
Wrote Hudson, "The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers", and "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 the individual's right to choose". I guess this is one area in which liberals do not believe in being pro-choice.
After years of virtually unchecked expansion of government powers, always of course "for our own good," it seems that the Constitution may slowly be coming off life support.
Louis DeBroux is a Taylorsville resident, married, with eight children. He is vice chair of communications of the Bartow County Republican Party. He owns Gatekeeper data backup and recovery. He can be e-mailed at led@gatekeeperbackup.com.