On December 13, in Richmond, Virginia, U.S. District Judge Henry E. Hudson ruled that a key provision of the Patient Protection Affordable Care Act of 2010 (Obamacare or “ACA”) was unconstitutional.

It was purely symbolic, and did not attack the central premise of federal powers. It was tantamount to Switzerland banning further construction of minarets over mosques, or to France banning head and face coverings. Those actions leave Islam untouched. The political/theocratic ideology is still there, undeterred, viral as ever, intent on taking over those countries and converting them to Islamic states.

Likewise, Hudson’s ruling does not fundamentally challenge Obamacare. It does not challenge the power of Congress to propose such a law, let alone leave to pass it and the power of the president to enact it with his signature. It could be interpreted as a mortal blow to Obamacare, that part of it which compels Americans to purchase health care insurance, that is, to “engage in commerce” so that the government may regulate it. Theoretically, the voiding of the mandate could lead to the inevitable unraveling and disintegration of the scheme. Republicans have vowed to have it repealed. But one must not count on any justice or politician setting that phenomenon in motion. The socialists who advocated, wrote, and passed the law still intend to see it implemented. The Washington Post reported: 

Hudson sided with Virginia, finding that “an individual’s personal decision to purchase – or decline to purchase – health insurance from a private provider is beyond the historical reach of the Commerce Clause” and that the mandate “is neither within the letter nor the spirit of the Constitution.” The judge also sided with Virginia on a secondary argument, that the law’s fine for people who refuse to buy coverage is a penalty not a tax and thus illegal.

However, the judge did not take two important actions that Virginia had sought. He ruled that the unconstitutionality of the mandate did not spill over to the rest of the law. And he did not grant an injunction, which would have halted the government’s work to implement the law, reasoning that none of those steps “are irreversible” because most provisions do not go into effect until 2014. 

But neither the Sixteenth nor the Seventeenth Amendment to the Constitution is within “letter” or the “spirit of the Constitution,” either. The one sanctions the taking by the federal government of private property with commensurate penalties if it is not “voluntarily” surrendered, while the other reduces the Senate to a popularly elected adjunct of the House of Representatives (instead of serving as a buffer against populist or democratic mob rule, as it was originally intended).

If the mandate is considered unconstitutional, then the unconstitutional elements of force and of penalty for not conforming to the ends of that force should naturally “spill over to the rest of the law.” It is illogical to think that the balance of the law remains untouched and sacrosanct, just as it is illogical to contend that removing a man’s heart will not result in his death. Obamacare relies on legalized force. That is the heart of Obamacare.

But Judge Hudson deftly did not “go there,” that is, challenge the police powers which the federal and state governments already employ to raise revenue and regulate property and actions. He did not challenge the “implied powers” of the federal government, which allow it to exercise powers not enumerated in the Constitution, nor the “necessary and proper” clause of Article One, on which Kathleen Sebelius, Secretary of the Department of Health and Human Services, defends Obamacare’s alleged constitutionality (as a matter of “tradition”), on three or four other arguments based on the General Welfare and Commerce clauses in her motion to dismiss Virginia Attorney General Kenneth T. Cuccinelli’s suit, which was filed shortly after in March shortly after President Barack Obama signed it into law.  

“Without everyone in the health insurance market, costs will increase, people with preexisting conditions will continue to be shut out of coverage, and insured Americans will continue paying for those who don’t get coverage,” said Kathleen Sebelius, secretary of health and human services.  

This is “spreading the wealth around.” You are your neighbor’s keeper. And it will take force to ensure that you take care of him, preexisting conditions or not.

Was Judge Hudson’s ruling an instance of evading the fundamental argument, or an instance of his not knowing what that argument ought to have been? Either way, his ruling is an instance of not thinking and acting in principles. To wit

The insurance mandate is central to the law’s mission of covering more than 30 million people who are uninsured. Insurers argue that only by requiring healthy people to have policies can they afford to pay for those with expensive conditions. But Judge Hudson ruled that many of the law’s other provisions could be severed legally and would survive even if the mandate is invalidated [by the Supreme Court]. 

One cannot count on the Supreme Court to concur with Judge Hudson’s ruling, nor to recognize how inadequate his reasoning is. The Court is not governed by reason, either. Witness its concurrences with the legality of eminent domain in the Kelo case, recently in the Atlantic Yards case, and most recently in the Columbia University case, all of which sanctioned the taking of private property for the benefit of private interests in conjunction with local governments’ claims of reviving “blighted” areas to generate greater tax revenues than they got from existing property owners.

In the latter case, for example, the Empire State Development Corporation coerced or intimidated New York City property owners into selling their economically viable property and then allowed the abandoned property to become “blighted,” in order to compel the last holdouts to sell out or see their property arbitrarily condemned. Columbia University, not a litigant in the case but which wanted the land to expand on, was merely the government’s silent partner in the taking.

Judge Hudson wrote in his ruling that allowing the mandate to stand “would invite unbridled exercise of federal police powers.” But the Supreme Court and lesser courts have not served as a consistent and reliable “bridle” on those powers. The government, especially under Obama’s administration, has run amok. Where has Hudson been while Congress has passed legislation that regulates farms, travel, diet, speech, manufacturing, and so on, all requiring federal “police powers”?

Observe, for example, Obama’s cemented mindset, one that is anchored in force. In a Washington Post article, “Mandatory health insurance now law’s central villain,” Obama’s “contradictory” positions are highlighted: 

As a candidate for the Democratic presidential nomination, Obama insisted that the health-care reform plans of his rivals were misguided, because they envisioned forcing Americans to buy health insurance or risk a fine. Over and over, he said on the campaign trail that such a mandate was unnecessary.

“My belief is – is that if we make [insurance] affordable, if we provide subsidies to those who can’t afford it, they will buy it,” Obama put it during a January 2008 debate in Los Angeles against fellow candidate Hillary Rodham Clinton, who favored a mandate.  


Subsidies, provided how and by whom? By the federal government with taxpayer money. That is, by force. Now, after the element of force has been questioned by a federal court, Obama defends the mandate. In fact, he adopted Cllinton’s “It Takes a Village” or “no-uninsured-person-left-behind” policy soon after being sworn into office. “Universal health insurance” means – everyone, with no exceptions (except congressmen and federal employees). That policy requires force. Kathleen Sebelius says so.  

Obama embraced the mandate after he moved into the White House and placed an overhaul of the nation’s health system at the top of his domestic agenda. Eager to avoid the strategy that had helped doom President Clinton’s health reform efforts of the 1990s, the White House refrained from producing a detailed road map, deferring to Democrats in Congress to write a plan. House and Senate Democrats preferred the idea of an insurance mandate, to take effect in 2014, and the president went along.  

No, Obama did not “go along” with the mandate. That was his intention from the beginning. His campaign rhetoric was framed to disguise his socialist agenda and his talent for dissimulation. His past, his political record and his behavior since assuming office confirm it. Only a one-eyed man in a country of the blind would claim that he just “went along.” And Obama is that one-eyed man.

Has it ever occurred to the advocates of mandated health insurance that those who “lack” it do not want it? Or that those who “can’t afford” it cannot because they are taxed up to their earlobes? No, these possibilities have not occurred to our “guardians.” Choice, volition, values other than insurance, and being impoverished by federal and state taxes are not in the statist manual of “public options.” Universal health insurance and care are “offers” one is not allowed to refuse.

Attorney General Cuccinelli was “elated” with the ruling. 

“This case is not about health insurance, it is not about health care,” Mr. Cuccinelli said at a news conference in Richmond. “It is about liberty.”

No, it should be about questioning the government’s power to become master of all it surveys. The force behind the minarets has not been repudiated. The mandate has not been refuted. It has simply been temporarily checked. The principle behind liberty – that one owns one’s own life, and that one’s life is not dependent on the sanction of the government or society – requires that it be applied universally, not on a case-by-case, piecemeal policy that ignores the usurpation of liberty in all other realms.

The absence of minarets does not mean that Muslims have stopped beating their wives or waging jihad.??

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Edward Cline

Edward Cline

Edward Cline is a novelist who has written on the revolutionary war period. He is author of the Sparrowhawk series of novels set in England and Virginia in the Revolutionary period, the detective novel First Prize, the suspense novel Whisper the Guns, and of numerous published articles, book reviews and essays.

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