Judge Hudson's ruling only delays the inevitable

Opponents of the health-care overhaul may want to think twice before getting too encouraged by Monday's court ruling that a key component of the health care legislation enacted this year is unconstitutional.  While the decision certainly increases the possibility of a Supreme Court rejection of the law, it could ultimately open the door to even more far-reaching government involvement in health insurance.

U.S. District Judge Henry E. Hudson's ruling that the requirement to purchase health insurance or pay a penalty exceeds Congress's constitutional authority, if it survives appeal, certainly puts a limit on the increasingly expansive interpretation of the interstate commerce clause.  But while the ruling asserts that the government may not compel individuals to purchase a product from the private sector, the irony is that the government's authority to compel individuals to purchase a product from the government has withstood the test of time.  Thus the long-run impact of this ruling could be outright nationalized health insurance, the very thing conservatives fear most in the spectrum of health care policy.

Both Social Security and Medicare represent nationalized insurance-products provided by the government, paid for by "taxes."  The tax label is important, because the constitutionality of these programs rests on the acknowledged taxation and spending powers of the government.  There is little dispute that the Constitution gives the government the power to tax people and use the proceeds to provide a service, even if it's one that many feel the government should not be involved in.  Indeed, one of the vulnerabilities of the health care legislation cited by Judge Hudson was its use of the term "penalty" rather than "tax" to describe the consequences of a failure to purchase insurance.

Still another irony is that the Democrats could have easily avoided this challenge. In its rush to get the legislation passed while there was still a large Democratic majority, Congressional leaders missed some obvious ways to make the law immune to the objections raised in the Virginia case.  For example, the bill could have created a government insurance program paid for by taxes, while allowing individuals to opt out with a private policy and get a rebate on the taxes.  The net effect of this would be to "penalize" those who failed to purchase private insurance by requiring them to pay for the government policy.  This structure is similar to some recent proposals for Social Security reform.

If in fact the Supreme Court ultimately declares the bill unconstitutional, such a simple fix will not be available to the bill's supporters because of the makeup of the new Congress.  On the other hand, it seems likely that in another ten or twenty years the pendulum will swing back to the Democrats, and they will learn from this experience how to make their version of reform compatible with the Constitution.  The result could then be "single-payer" nationalized insurance.

What is the lesson here?  The only real check on the size of government is through the ballot box.  Relying on the courts to limit the expansion of government is a doomed strategy.  There is no shame in doing so-the charge of "judicial activism" against efforts to use the legal system to limit government is laughable on its face. But while the courts may place an obstacle here or there before the avalanche of government proliferation, they do not have the ability to stop the onrush of new programs.  The power to tax and spend "to provide for the common Defence and general Welfare of the United States" is plainly there in Article 1, Section 8.  The courts can redirect the avalanche's path, but only the voters can put a halt to it.

Opponents of the health-care overhaul may want to think twice before getting too encouraged by Monday's court ruling that a key component of the health care legislation enacted this year is unconstitutional.  While the decision certainly increases the possibility of a Supreme Court rejection of the law, it could ultimately open the door to even more far-reaching government involvement in health insurance.

U.S. District Judge Henry E. Hudson's ruling that the requirement to purchase health insurance or pay a penalty exceeds Congress's constitutional authority, if it survives appeal, certainly puts a limit on the increasingly expansive interpretation of the interstate commerce clause.  But while the ruling asserts that the government may not compel individuals to purchase a product from the private sector, the irony is that the government's authority to compel individuals to purchase a product from the government has withstood the test of time.  Thus the long-run impact of this ruling could be outright nationalized health insurance, the very thing conservatives fear most in the spectrum of health care policy.

Both Social Security and Medicare represent nationalized insurance-products provided by the government, paid for by "taxes."  The tax label is important, because the constitutionality of these programs rests on the acknowledged taxation and spending powers of the government.  There is little dispute that the Constitution gives the government the power to tax people and use the proceeds to provide a service, even if it's one that many feel the government should not be involved in.  Indeed, one of the vulnerabilities of the health care legislation cited by Judge Hudson was its use of the term "penalty" rather than "tax" to describe the consequences of a failure to purchase insurance.

Still another irony is that the Democrats could have easily avoided this challenge. In its rush to get the legislation passed while there was still a large Democratic majority, Congressional leaders missed some obvious ways to make the law immune to the objections raised in the Virginia case.  For example, the bill could have created a government insurance program paid for by taxes, while allowing individuals to opt out with a private policy and get a rebate on the taxes.  The net effect of this would be to "penalize" those who failed to purchase private insurance by requiring them to pay for the government policy.  This structure is similar to some recent proposals for Social Security reform.

If in fact the Supreme Court ultimately declares the bill unconstitutional, such a simple fix will not be available to the bill's supporters because of the makeup of the new Congress.  On the other hand, it seems likely that in another ten or twenty years the pendulum will swing back to the Democrats, and they will learn from this experience how to make their version of reform compatible with the Constitution.  The result could then be "single-payer" nationalized insurance.

What is the lesson here?  The only real check on the size of government is through the ballot box.  Relying on the courts to limit the expansion of government is a doomed strategy.  There is no shame in doing so-the charge of "judicial activism" against efforts to use the legal system to limit government is laughable on its face. But while the courts may place an obstacle here or there before the avalanche of government proliferation, they do not have the ability to stop the onrush of new programs.  The power to tax and spend "to provide for the common Defence and general Welfare of the United States" is plainly there in Article 1, Section 8.  The courts can redirect the avalanche's path, but only the voters can put a halt to it.

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