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Obamacare Ruled Unconstitutional; Americans Favor Repeal Almost 2 to 1

8:03 AM, Dec 14, 2010 • By JEFFREY H. ANDERSON
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Yesterday's ruling by a federal district judge, declaring that Obamacare's individual mandate is unconstitutional, is a noteworthy blow to the highly unpopular overhaul and its ultimate prospects for survival. The New York Times writes:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act....

The individual mandate – the requirement that Americans buy federally approved health insurance whether they want it or not – is, indeed, Obamacare's "keystone provision."  Without it, younger or healthier Americans would sensibly opt out of buying health insurance (until they get sick or injured) thereby leaving Obamacare's taxpayer-subsidized insurance "exchanges" to cover everyone else in the non-group market, regardless of preexisting conditions or costs. 

Medicare's chief actuary has already projected that, over ten years, Obamacare would raise overall U.S. health costs by over $300 billion in relation to projected U.S. health costs without Obamacare. But without the individual mandate, Obamacare would cause health costs to skyrocket – by a lot more than "just" $300 billion. Thus, without the individual mandate, Obamacare couldn't realistically stand.

The Times writes,

In a 42-page opinion issued in Richmond, Va., Judge [Henry E.] Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

In other words, the federal courts have never before ruled that the Constitution's provisions empowering Congress to raise taxes and to regulate interstate commerce actually empower Congress to compel commerce. They have never before ruled that Congress has the power to compel Americans to buy a product of the government's choosing. And yesterday's ruling was no exception – as it rejected the novel constitutional construction advanced by the Obama administration.

The Times writes that the ruling, which the Obama administration will of course appeal, is "striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous." In this way, yesterday's ruling further highlights the gap between the views of elites and those of everyday Americans on the impending fate of Obamacare. Much like they have had a hard time taking the legal challenges to Obamacare seriously, establishment types in both parties have had a hard time accepting the reality that Obamacare is very likely to be repealed – that, as James Madison wrote in The Federalist, #63, "The cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers."

Yesterday, within hours of the release of this judicial ruling, Rasmussen released a new poll showing that Americans support the repeal of Obamacare by the colossal margin of 60 to 34 percent. Independents favor Obamacare's repeal by a margin of more than 2 to 1, 62 to 28 percent.

The combination of this polling and yesterday's ruling shows that, whether the political establishment wants to believe it or not, the political and legal challenges to Obamacare are not remotely frivolous. Rather, they are deadly serious – and they are gaining steam.

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