NRO's Critical Condition Blog
February 4, 2011
by Tevi Troy
In October of 2009, a reporter from CNS asked then-Speaker Nancy Pelosi which provision of the Constitution allowed Congress to impose a mandate that all Americans purchase health insurance. Pelosi responded “Are you serious? Are you serious?” In case there was any doubt as to whether Pelosi herself was serious about her comment, her spokesperson Nadeam Elshami later clarified the remarks, saying “That is not a serious question. That is not a serious question.” Apparently, like Jimmy Two-Times in Goodfellas, they like repeating themselves in Pelosi’s office.
Unfortunately for them, repeating something does not make it so, as Judges Henry Hudson and now Roger Vinson have taught us. There is indeed something extremely questionable from a constitutional standpoint with the mandate to force individuals to purchase health insurance. Judge Vinson’s ruling is more sweeping than Judge Hudson’s, as it determines that the entirety of the law be overturned.
The ruling is also well-researched, as it looks carefully at the history of the Commerce Clause and its meaning. If I can be permitted a moment of fraternal pride, the ruling refers to an apparently seminal article by Judge Robert Bork and Daniel E. Troy (Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce, 25 Harv. J. L. & Pub. Pol’y 849, 861-62 (2002)) in attempting to determine the scope of the Commerce Clause. And like Pelosi, Elshami, and Jimmy Two-Times, the ruling refers to the article twice. In fact, Judge Vinson’s ruling appears so grounded in the Constitution, quoting the Federalist Papers, Madison, and Hamilton, not to mention Bork and Troy, that it almost makes one worry that other, more “modern” judges ruling on the issue won’t be swayed by its argument.
The decision also puts more pressure on the Obama administration. I have written previously about the notion of “effective repeal,” the idea that the Republicans may not be able to repeal the health-care bill straight out right now for structural reasons but a combination of legislative oversight, public dissatisfaction, and judicial disapproval can make the bill untenable and ultimately bring about its collapse. This latest ruling is another challenge to both the validity and the viability of the law. Speaker Pelosi may not have thought that the challenge to the law was “serious,” but it is a fair bet that she did not consider the challenge to her position as Speaker of the House “serious” either, and we see where that has gotten her.
The Obama health law now faces “serious” challenges on legislative, judicial, and political fronts. This should not come as a surprise to anyone who has been following the issue. In contrast to previous domestic-policy changes like Social Security, Medicare, and welfare reform, all of which had substantial bipartisan support, the one-party imposition of the health-care law has ensured that will always be seen as a partisan endeavor. As a result, it will never be able to overcome the original sin that governed its birth, and this will ultimately be its undoing. Judge Vinson’s ruling, along with the fact that a majority of states have joined the lawsuit against the bill, the recent House repeal vote, and the bill’s consistent unpopularity, remind us that there are many avenues available in a free society for challenging questionable legislative actions, and the anti-Obamacare movement is “serious” about exploring all of them.
Tevi Troy is a Senior Fellow at Hudson Institute and served as the Deputy Secretary of the U.S. Department of Health and Human Services from 2007 until 2009.
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