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Healthcare Decision Prevents Opening a Constitutional Can of Worms

District Court Judge Henry Hudson gave an early gift to many conservatives this week, ruling that the individual mandate in the Democrats’ healthcare bill is unconstitutional.

Before we all toast our eggnog, Hudson’s decision wasn’t the end of this story. Two district court judges have previously ruled that the individual mandate was constitutional (unsurprisingly, they were Clinton appointees). More importantly, Hudson ruled that the individual mandate was “severable from the balance of the enactment.” Translated from legal jargon, that means that he ruled solely on the constitutionality of the individual mandate, not the bill in its entirety. Finally, the judge refused to grant an injunction that would have stopped all enforcement of the bill. The government is thus free to continue building the infrastructure necessary to implement the remainder of the legislation, at least until a higher court rules on the matter.

Taken together, Hudson’s ruling was a blow to Obamacare, but not a fatal one. At least, not yet.

Some liberal columnists and supporters of the law were actually heartened by the decision. The Washington Post’s Ezra Klein writes,

“The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate . . . The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do. Hudson pointedly refused.”

I think this overlooks some major problems that the bill’s supporters will be faced with. First, this puts the White House and Democrats who fought hard for the bill on defense. Our nation’s recent economic struggles have led to a resurgence of Constitutional conservatism. People have identified the failures of our current government and wax nostalgic for the Framers’ vision of a limited government with an emphasis on individual responsibility.

Being on the wrong side of the Constitution is not a good place for a politician to be. As the New York Times writes, “It provides another rallying point for conservatives as they make the case that government is overreaching and must be reined in.” So far it has been an easy case to make. Take Democratic Congressman Pete Stark who was asked the question, if the government can force people to buy healthcare under the Constitution, what can’t they do? His response? “The federal government can do most anything in this country.” Sadly, he’s right.

Nevertheless, we are beginning to see a backlash against such logic. Monday’s ruling serves as yet another rallying cry against federal government overstepping. Democrats will now be forced to defend their healthcare law against the backdrop of a limited government. Not an enviable position to be in.

Second, the individual mandate is more crucial to the success of the healthcare law than Klein and other liberals would like to admit. In fact, part of Secretary Sebelius’ argument in favor of using the Necessary and Proper Clause to prove the law’s Constitutionality is that,

“Without full market participation, the financial foundation supporting the health care system will fail, in effect causing the entire health care regime to ‘implode.’ Unless everyone is required by law to purchase health insurance, or pay a penalty, the revenue base will be insufficient to underwrite the costs of insuring individuals presently considered at high risk or uninsurable.”

The law’s financial footing was already on shaky ground. A significant portion of the public backlash was in response to the legislation’s expected cost. The individual mandate actually hid an enormous chunk of costs. Healthy people, who would be forced to overpay compared to their expected health outcomes, were expected to be the financial base upon which the whole system was built. If nothing else, the fines levied on those who failed to get healthcare would put a dent in the bill’s bottom line. But removing the individual mandate eliminates these two revenue generators, revealing the utter disastrousness of Obamacare’s pricetag.

As people’s anger over the rising cost erupts, there are two possible outcomes. The Washington Post argues that it will “force more aggressive reforms than even Obama has proposed” in the form of “some kind of government-run, single payer system.” The more likely scenario in my opinion is that the public revolts against government intrusion in healthcare altogether.

As the threat of our deficit becomes an increasingly larger issue, the push for smaller government reforms and significant reductions in government spending will become more vigorous. I have trouble believing that a country pushing government austerity will simultaneously open up to an entirely government run healthcare system.

Despite Judge Hudson’s ruling, conservatives should hold off on dancing around the Christmas tree, but if nothing else, we should take heart that this puts a little coal in Democrats’ stockings.

by Brandon Greife, Political Director of the College Republican National Committee

http://speakout.crnc.org/blog/2010/12/14/healthcare-decision-prevents-opening-a-constitutional-can-of-worms/

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