While conservatives basically rode opposition to “Obamacare” to victory in the 2010 midterms, the bill’s been flying under the radar since November 2, with Congress far more preoccupied with tax cuts, DADT, and unemployment benefit extensions, and Republicans biding their time for 2011, when their swelled numbers will face better odds of dismantling the bill in Congress.
So I’m genuinely surprised that yesterday, somewhat out of left field, Bush-appointed U.S. District Judge Henry E. Hudson ruled that it is unconstitutional for the U.S. government to require Americans to purchase health insurance, which is basically the foundation of Obama’s universal health care bill (which will only work, financially, if everyone takes part, both sick and healthy. Also, it should be noted people can opt out of buying insurance, they’ll just have to pay a fine, which will be prorated based on income level).
It remains yet to be seen whether or not Hudson’s ruling will hold, as the case makes its way through appeals courts up to the Supreme Court. The Obama administration doesn’t seem fazed, citing two other favorable rulings by judges upholding the bill, plus the fact that the mandatory insurance clause won’t go into effect until 2014, leaving plenty of time to hear opposition and fine-tune the bill.
Legally, whether the bill is necessarily constitutional is a tough question to answer. It all boils down to a) interpretation of the Constitution’s Commerce Clause (Congress has the right “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”) and b) just how flexible you think the Constitution should be.
My personal opinion is that trying to divine the Founding Father’s minutest intentions is impossible, not to mention irrelevant to much of contemporary society’s needs. In that sense, I’m more of a functionalist who believes in a “living constitution” that has the ability to morph to suit the people’s needs (though a completely amorphous Constitution would be useless, so in that sense functionalists are always walking a tight rope). I even think judicial activism (a generally pejorative term used to describe judges/justices who pass rulings based on their own personal convictions, rather than a strict upholding of the Constitution and existing laws; arguably what Judge Hudson is doing as a conservative who opposes healthcare) has its time and place–otherwise, how would certain ingrained societal evils be eradicated?
Ultimately, the health care bill will live or die by what Congress does in 2011, not what judges decide now (particularly since Hudson appears to be in the minority, and it is likely that the Supreme Court would rule in favor of the health care bill’s constitutionality).