(Centennial Fellow) There's hope for America because, down in Florida, we have a wondrously smart federal judge who, unlike so many, still believes in the Constitution's restrictions on federal power. He is even courageously willing to apply them to Obamacare, which is to say, oh, oh.
If you do that, Obamacare withers and dies. The withering especially starts in its requirement that those without health insurance will eventually have to hightail it to an insurance office and buy some.
The issue mostly comes down to the Constitution's Commerce Clause, used to justify the demand. Its original purpose was mainly to ensure that states don't refuse to trade with each other. That kind of protectionism could just about kill off the union, and the founders recognized as much. They were not figuring the federal government would then use their words to regulate virtually any activity remotely connected with trade or even the production of goods for one's own consumption, but that's what started happening under the New Deal in the 1930's.
Obamacare would take these constitutional misadventures to a bold, novel, high-handed realm, as is explained in refreshingly lucid prose by the able judge, Roger Vinson, who explained that not buying something is hardly an activity. It's inactivity. Telling citizens they must buy a private product has nothing to do with facilitating trade or regulating industry, and if you illogically insist otherwise, you are tyrannically insisting there's next to nothing the government cannot make you do.
None of this is to say there aren't objections aplenty to the judge's wisdom, many of them to the effect that this judge is, you know - yech! -- conservative, practically a tea party kind of guy.
The critics want it understood that this particular law is that without which there is no health, goodness nor compassion in this nation, and that as far as the powers of the government are concerned, absolutely anything goes as long as it agrees with their collective desires. The Obama administration especially knows how to put a judge down. Vinson is a "judiciary activist," spokesmen say.
Others have dealt with this cutesiness, but let me reiterate that the use of the term "activist" is ordinarily in reference to the multiple judges who, in reviewing legislative deeds, substitute their own moral or political judgment for a reasonable interpretation of law or precedent. The result is that rule of law gets replaced by oligarchy, the antithesis of our republican experiment. Vinson was engaged in no such betrayal of principle. He was arguing that we heed the Constitution.
His ruling would toss the whole health law out the window because of the impossibility of taking out one piece and seeing which others might hold up. Should the Supreme Court ultimately agree with such a stance, it doesn't follow that there can be no substitute better than this oversized abomination. President Barack Obama said in his State of the Union address that he'd go along with anything that would make it better, which is like saying he'd go along with converting an elephant to a Chihuahua puppy. Can't be done. The need is to start all over again with some such inexpensive but problem-solving step as switching from employer-based to individual-based insurance subsidies.
Here's hoping that the high court, when it gets to it, will take note of Vinson's quote of James Madison in the Federalist Papers. Because we humans aren't angels, he said, we need government to help control us, but for the same reason, government itself must be controlled. It's appropriate a number of commentators have paid attention to this quote because if our most powerful institutions don't understand as much, ours will become a land of liberty only by reference to discarded traditions
Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso and Denver, is a columnist living in Colorado and a Centennial Institute Fellow. He can be reached at SpeaktoJay@ aol.com