Nothing less than America as we have known it is at stake in the Supreme Court’s decision on ObamaCare’s constitutionality.
(By the way, those who object to that nickname can officially shut up. No less a hardened Democratic partisan than David Axelrod said in a campaign email yesterday: “Hell yeah, I like Obamacare.” Well, David, I like calling it ObamaCare, except with a capital “C,” because it sets off the name of the authoritarian who championed it.)
The fallback position (“it’s okay, we can always repeal it”) is fraught with danger. Watch what happens if ObamaCare is upheld. Just like that, the elites will tell us that ObamaCare has been “blessed” (not merely permitted) by the Court; attempts to overturn it will suddenly be framed as going against the “expressed will” of the infinitely wise, learned Court.
Repeal could still be accomplished and the effort will be necessary, but it will run up against status quo defenders with no shortage of underhanded means to thwart it at their disposal. Success would largely depend on the steely nerve of a host of alleged conservatives who have betrayed the cause they claim to believe in so often that we’ve all long since lost count of how many times it has happened.
And of course, the willingness to continue to uphold ObamaCare will join the insistence on giving expectant mothers the “right” to end their preborn babies’ lives as the next leftist litmus test for Court nominees.
The Court’s duty to declare the entire law unconstitutional could hardly be more obvious.
Here’s part of the Wall Street Journal’s Saturday editorial in anticipation of oral arguments on ObamaCare next week (bolds are mine):
Liberty and ObamaCare
The Affordable Care Act claims federal power is unlimited. Now the High Court must decide.
… The argument against the individual mandate—the requirement that everyone buy health insurance or pay a penalty—is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.
This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly—though not without limit—and it has. It could even mandate that people use insurance to purchase the services of doctors and hospitals, because then it would be regulating market participation. But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.
This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.
The framers feared arbitrary and centralized power, so they designed the federalist system—which predates the Bill of Rights—to diffuse and limit power and to guarantee accountability. Upholding the ObamaCare mandate requires a vision on the Commerce Clause so broad that it would erase dual sovereignty and extend the new reach of federal general police powers into every sphere of what used to be individual autonomy.
… As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.
The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.
The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.
If the Court upholds ObamaCare, “could” in the final excerpted paragraph turns into “will.”
Part 2 will come tomorrow.