By Robert F. Sanchez, JMI Policy Director
When the U.S. Supreme Court began its new term on the proverbial “first Monday in October,” one case loomed especially large on its docket: the lawsuit challenging the constitutionality of the Affordable Health Care Act, a.k.a. “Obamacare.”The high court’s review of the issue was assured when a three-judge panel of the Atlanta-based 11th U.S. Circuit Court ruled 2-1 that a number of the law’s key provisions are unconstitutional. In particular, the majority opinion by Chief Judge Joel Dubina – joined by Judge Frank Hull – held that Congress exceeded its constitutional authority when it included the so-called “individual mandate” requiring that every individual must “enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”Previously, a different U.S. Circuit Court had upheld the constitutionality of this legislation, mandate and all. When there is a conflict among different judicial circuits, the cases typically go to the U.S. Supreme Court, which must resolve such conflicts lest the law be different in different regions of the country. Ironically, this means that the fate of health care, an issue long associated with one Kennedy – the late Massachusetts Sen. Ted Kennedy – may well be in the hands of another Kennedy – the U.S. Supreme Court’s “swing vote,” Justice Anthony Kennedy.For defenders of individual liberty, more is at stake in this case than the fate of “Obamacare.” At stake is whether the U.S. Constitution – a document that the Founders plainly intended to limit the role of the federal government – still means what it did for most of our nation’s history. In recent years, unfortunately, activist judges’ expansive readings of the Constitution’s commerce clause have given the federal government carte blanche to do practically anything in the name of regulating “interstate” commerce. And whatever these judges couldn’t attribute to regulating commerce, they could always attribute to the phrase “promote the general welfare” in the Constitution’s Preamble.When the healthcare issue reaches the U.S. Supreme Court, if the justices wanted to borrow some brilliantly concise language to summarize the issues, they could hardly do better than turn to a ruling written back in 1990 in connection with a totally unrelated case involving obscenity, of all things. In that decision, U.S. District Judge Jose Gonzalez – who had studied journalism as an undergraduate at the University of Florida – wrote one of the better opening sentences to be found in any judicial opinion, most of which are often characterized by drab legalese. In reference to a case involving rapper Luther Campbell and his aptly titled album As Nasty as They Wanna Be, Judge Gonzalez wrote: “This case pits two old foes: anything goes and enough already.”In a different sense, so does the case involving the federal role in health care – and in our lives. If “Obamacare,” with its coercive individual mandate, is deemed constitutional, then it’s truly “anything goes” from here on out. So much for the notion that we have a federal government with authority that is limited and delineated. So we are left to hope that when this case does finally reach the U.S. Supreme Court, even that noted ideological swinger, Justice Anthony Kennedy, will write a majority opinion finding this overreaching law unconstitutional – an opinion that could easily be summarized as telling Congress “Enough already!”
2011
