In the Constitution

This post draws significantly on an Op Ed from the WSJ, 2/1/2011

Federal Judge Robert Vinson's decision declaring Obamacare unconstitutional opens with a passage from James Madison's Federalist No. 51 "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

The case is not about health care at all. At the heart of the state's lawsuit is the individual mandate which requires everyone to purchase health insurance or be penalized for not doing so.

The legal justification for the law according to the Obama administration is the Commerce Clause. The original purpose of the Commerce Clause was to eliminate interstate trade barriers that prevailed under the Articles of Confederation (amongst the major national problems that gave rise to the Constitution).

After the New Deal, The Supreme Court dramatically expanded the scope of the Commerce Clause as justification for Congressional regulation. (In 1942, the Court held that growing wheat for personal use affected interstate trade, and so justified Federal regulations of the use of agriculture).

Regardless of the interpretation of the Clause, it only applied to "clear and arguable activity", Judge Vinson writes, emphasis his. It never applied to inactivity. Crossing this threshold converges the clause into general police power of the kind the Constitution reserves for the states.

The law is justified on the grounds that "inactivity" (not buying health insurance) is really an activity because everyone eventually needs medical care and those costs will be transferred to the insured.

"You can't opt out of health care." You can't opt out of eating. Under this interpretation of the Commerce Clause, laws could be passed mandating that citizens eat wheat on the grounds that not eating wheat transfers the cost of not eating wheat onto the rest of the market. "Congress could do almost anything it wanted," writes Judge Vinson.