ObamaCare Hits an Iceberg

Federal Judge Henry E. Hudson ruled Monday in favor of Virginia’s claim that the requirement for people to purchase health care exceeds the power of Congress under the Constitution’s Commerce Clause or under the General Welfare Clause.

“It is not the effect on individuals that is presently at issue — it is the authority of Congress to compel anyone to purchase health insurance,” wrote Hudson.

Judge Hudson correctly asserts that by forcing individuals to buy health insurance, the Congress has entered new territory. The Commerce Clause of the U.S. Constitution has been used as a tool, almost from the beginning of the United States, to expand the role of government in people’s lives, particularly in the economy. With ObamaCare, Congress took the next logical step and said that government may not merely regulate or subsidize economic activity, but actually force individuals to engage in it.

Liberal and socialist justices will argue, including on the Supreme Court (where this case will ultimately go), that the “right” of government to regulate interstate commerce is more broadly defined than Judge Hudson claims. Of course, if this were true, government has the power to force individuals to purchase all manner of items. There’s really no limit to what government can force people to do if it’s allowed to force people to purchase health insurance.

Left out of the debate all along, of course, is whether the government has the right to enslave medical professionals — and patients — by restraining their right to free trade. When Congress first passed Medicare, it essentially declared that medical care, at least for seniors, is the domain of government. It didn’t outlaw the right of patients and doctors to pursue medical exchanges in a fee-for-service context, but by establishing medical care for the elderly as a universal right, it made it practically impossible for most people to obtain doctor’s services outside of the government context. We might call this “soft socialism.”

In a consistent world, advocates of socialism would simply have passed a public option for the entire population — i.e. Medicare and Medicaid for all. Obama and the Pelosi Congress weren’t quite able to do this. If they had done so, we’d now have socialized medicine under the Canadian and British model. Government would be the sole provider of first and last resort — waiting lists, rationing and all. (Those will eventually arrive anyway.) The Democrats weren’t able to pass that, so they compromised. They decided to so heavily subsidize and regulate what’s left of the private insurance industry — the part that covers those under age 65 — that private health insurance would in effect go out of business, under the weight of new regulations. They did this by offering citizens a “choice” between government plans or remaining private plans that would skyrocket in price (indeed, have already started to do so) to the point where eventually everyone would submit and go under a government plan. Unfortunately, for this scheme to “work,” even on its own terms, people must first be forced to buy into the health insurance policies that will, before long, go by the wayside (liberals hope) in favor of exclusively government medicine.

The contradiction in this compromise caught up with liberals in this ruling, although it remains to be seen how far Judge Hudson’s argument can go. Many states, for example, require people to buy automobile insurance. “Is that unconstitutional as well?” will be the argument. Looming beneath all this is a more fundamental debate over the role of government in society, and the power that government legitimately has over the individual. Does the government have no right to initiate force against the individual, under any condition? If so, then of course ObamaCare should be struck down; but so too should the entire welfare-regulatory state as we know it. I can’t imagine most judges arguing that principle, or even implying agreement with it, although I would applaud them if they did. What’s more likely is that ObamaCare will either be struck down by the Supreme Court on a 5-4 vote for the wrong reasons; or ObamaCare will be upheld because even the conservative justices on the high court won’t be able to stomach the implications of an intellectually honest, principled decision.

Hudson’s ruling is, of course, a good outcome, at least for the moment. ObamaCare will end up before the United States Supreme Court, and there’s an arguably 50-50 chance it will be struck down, just like that. To those who support freedom and individual rights in medicine, it’s a start. But remember: Getting rid of ObamaCare will merely revert to the over-regulated and already socialized medical care system as we’ve known it. The only real solution is to restore a free market in medicine. Just like that.