From the Associated Press, the big story of the day:
“A federal judge declared the foundation of President Barack Obama’s health care law unconstitutional Monday, ruling that the government cannot require Americans to purchase insurance. The case is expected to end up at the Supreme Court.”
This matter, as the AP suggests, is far from settled. I just finished the opinion, which will be more accessible tomorrow. Two ethical conclusions jump out from it, however.
1. The expedient and dishonest manner in which the Democrats passed the law finally came home to roost. Because it was politically undesirable to tell the public that the law had to be funded by a tax, the Administration and its minions kept calling the amount of money a citizen would be required to pay if he didn’t buy insurance as mandated in the law a penalty. This meant that the unprecedented imposition of a law requiring a citizen to purchase something against his or her will was justified under the Commerce Clause of The Constitution. once the bill was signed, however, and it began to look as if the Commerce Clause rationale would be less popular with courts than with voters, the Department of Health and Human Services pronounced the provision a tax again. While dismantling that argument, District Judge Henry Hudson implied that for Congress to sell a bill to the public by claiming it did not involve a tax, and then to call it a tax again as soon as the bill became law was not worthy of a democracy, and essentially a fraud on the public.
2. The rationalization “It’s for a good cause” doesn’t work, at least with this judge, when violating the Constitution is involved. “Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds,” Hudson wrote. In this country, doing otherwise is called “abuse of power.”
Ethics Alarms 
I take heart that Judge Hudson did not strike down the entire health care plan, given his financial ties to organizations that work for Republicans opposed to the bill, including Ken Cuccinelli, the Virginia attorney general who brought the suit.
I look at this as kind of the flip side of the Ground Zero Mosque debate. Although I personally believe that the mandate is indeed required by the Constitution in terms of the “general welfare,” I can see why a true Constitutional purist would say it is a violation. To me, this is something that may not be Constitutional with a capital “C” but is the right thing to do. May not hold up in court, but it is good for my community and my country.
I sort of agree, in the sense that there may be no other way to get around the pre-existing condition problem, give that so many will try to scam the system if insurance isn’t required. On the other hand, the idea of the government ordering us to buy something for “general welfare” is the most dangerous precedent imaginable, and anyone who says otherwise is being dishonest. It would help the economy if everyone bought GM cars, too. There is no big C/little C dichotomy: something either is permitted by the Law of the Land or it isn’t, and I think Hudson is right: this isn’t. It’s a terrific opinion.
I don’t think buying a GM car and having health care quite equate as far as the general welfare –having a healthy population benefits all of us–owning a Chevrolet, not so much. But I see your point. Plus, I think this judge’s opinion is tainted by self-interest, and so far he is outnumbered 2 to 1.
That’s not the constitutional point, John. If Congress can use the Commerce Clause justification to make us buy health care insurance, then it can make us buy anything, whether it is good policy or bad.
That conflict you refer to is a reeeeeeal stretch. I’m pretty tough on conflicts, but I don’t see how that consulting firm benefits from his decision, and I certainly don’t see how he does. And there is great doubt whether this scheme will lead to a healthier population—it could just as easily lead to fewer doctors. Even if it did, ripping a hole in the Constitution in exchange for more affordable health care is a bad trade.
As for 2-1—this isn’t a baseball game. The key is getting the case to the Supreme Court, and which opinions might be persuasive to the Justices. Hudson wrote a good one. One might be enough.
I believe the theory (in some circles) is that the Commerce Clause mixed with the Necessary and Proper Clause closes your loophole. That is very much up for debate, and has nothing to do with the ethics of the situation. Is this a constitutional blog or an ethics blog?
I agree that the Necessary and Proper Claus is going to probably tell the tale. Since it isn’t a Constitutional blog, I’m not dealing with that: the quote about simply because the goal is laudable doesn’t excuse violating the Constitution is still correct, and the tax/penalty bait and switch was still dishonest. There a great debate over the Necessary and Proper Clause over at Volokh: http://volokh.com/2010/12/14/kurt-lash-on-judge-hudson-and-the-necessary-and-proper-clause/
I wouldn’t dare try to write a Constitutional Law blog. Ask me sometime about my experience in Prof. Lewin’s class…
Actually, it is a ball game with nine players deciding it’s outcome. Justice Roberts himself originated the analogy. And I’ll update my score to 14 to 1 since 11 judges have dismissed the cases against the health care plan outright. Just hoping Kennedy has his ethics in the right place.
It was a bad analogy by Roberts, as many have pointed out.
Judges, including those on the SCOTUS, have a duty to make decisions based on law, not ethics. This may be one of those cases where that will make a difference.