Obamacare hits a snag

Few Constitutional provisions get half the workout of the Commerce Clause, that Article I, Section 9, Clause 3 prerogative of the federal government

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

This is the essential wellspring of the power of the central government to get involved in state matters where the Constitution does not confer primary jurisdiction on the feds (for example, the exclusive federal jurisdiction over bankruptcy, or the law of the high seas, or America's biggest business, war). As a good, die-hard liberal, I have mixed feelings about the overuse of the Commerce Clause. On one hand, without the liberal use of the Commerce Clause, it would have been much harder to rein in the abhorrent practices under the Jim Crow laws. "State action" (such as public education or voting rights or access to the courts) is governed by the Due Process and Equal Protection Clauses of the 5th and 14th Amendments; but private prejudice, such as Rand Paul's desire to return to the days when a black family caught out in the rain and seeking shelter in a Kentucky motel could be turned away as an exercise of the motel owner's "freedom" (his freedom equating to the family's consequent need to drive on up the road to, oh say, Pennsylvania). Or lunch counters in Montgomery, Alabama, or a swimming pool in Macon, Georgia. The Civil Rights Movement was given a tremendous boost by expansive interpretations of the Clause.

On the other hand, I'm also a "small d" democrat in basic agreement with Thomas Jefferson's idea that the government is best which governs least. A pervasive, all-power central government can guarantee civil liberties, but it can also threaten them through NSA spying, TSA sexual assaults at the airport, or an out of control military-industrial complex. No one in this day and age can convincingly argue that the central government is too small.

Along comes today's ruling by a federal judge in the 4th District in Richmond, Virginia holding that the mandatory purchase of medical insurance under the recently-passed health care bill is unconstitutional, to wit, not permitted by the Commerce Clause, and thus an overreach by the central government into areas of state control. Essentially, Judge Henry Hudson concluded that an individual's decision (and resultant inaction) in not buying insurance cannot be "interstate commerce" because the individual...didn't do anything. The language is fancier than that, of course, but that is the essence of it, metaphysical as it may seem (what is the sound of a wallet not opening?, and other Zen koans). Thus, the federal government has no right to force, on pain of monetary penalty, an American citizen to interact with a private insurance company in order to make the actuarial basis of Obamacare viable.

There is, of course (if your mind runs in the same channels mine is most comfortable) a delicious irony in all of this. Had the spineless Dems and the Lawn-Chair-in-Chief offered a public option as part of the solution to the national disgrace of American health care, this problem would not exist. An "option" to buy insurance from a government plan not only (a) would have acted as a serious brake on out-of-control, predatory pricing by the insurance cartel, but (b) is by its very nature proactive, positive action and thus, of course, covered by the Commerce Clause. The federal government can constitutionally regulate the purchase of health insurance on an open, interstate exchange where the government is itself the vendor.

I don't know whether this decision will hold up or not. It seems a little too cute by half. A Zenesque interpretation's survival all the way through the Supreme Court seems iffy at best, for whether or not the individual's inaction is interstate commerce, there is little doubt that the whole business of medical insurance most definitely is (hell, if the feds can regulate the sign-in desk of the R-U-Lonely Motel on the outskirts of Nashville because it's in interstate commerce, they can regulate this), and the mandatory purchase requirement is part of that entire scheme. The judge (a George W. appointee) didn't like the Big Government plan, obviously, and did what judges can do with the vague language of the Constitution and the sketchy guidance of case precedent: he made things turn out the way he wanted them to, and he didn't like the coercion involved in making people buy products from private industry (I don't really like it much myself). The Department of Health & Human Services, as defendant, pointed out that many states make residents buy car insurance if they want to drive, but Judge Hudson distinguished these cases by noting that one can avoid buying auto insurance by not driving, whereas, one has to buy health insurance under Obamacare by virtue of one's "very existence." Hudson might be in the wrong field; he should probably be teaching existential philosophy at the Sorbonne.

Interestingly, however, the Virginia trial court where this occurred (in a proceeding known as a Motion for Summary Judgment) is part of the notorious Fourth Circuit, which occupies the same approximate position for conservatives as the Ninth Circuit (based in San Francisco) does for liberals. It was not accidental that the Bush Administration, when it wanted to deprive an American of constitutional rights (such as Jose Padilla), was careful to incarcerate them within the compassionate confines of the Fourth (Padillia was in a Navy brig in South Carolina). That way the prisoner had to fight his way up through the brutual jurisprudence of the trial courts and appeals court of the Good Ol' Fourth, Confederate flag waving in the background. Ah such glorious memories of our Gulag past! Aren't you glad Obama was quick to reverse all this nonsense? Oh that's right, he didn't.

Thus, the appeal by the Department of Health & Human Services will be to that same Fourth Circuit Court of Appeals, where the Bush-Cheney-Rumsfeld gang had what little judicial success they enjoyed in their war on the Constitution. There is another Virginia case from Lynchburg on essentially the same issue which recently went the other way, so the Fourth Circuit will have to decide which one they like the most. Make no mistake, judicial decisions interpreting vague language such as the reach of the Commerce Clause are far more political than "legal," whatever that may mean.

Ultimately, of course, this mess will wind up in the weird clutches of the Roberts Supreme Court. I don't know how the Robed Rascals will handle this one. One one hand, the court is conservative and sort of believes in states' rights (except where they have the opportunity to reinterpret state election law so they can appoint a president; see, Bush vs. Gore). On the other, these people are in the District of Columbia and hate giving away power. But I would surmise, just to thwart Obama and make him sorry he ever criticized the Citizens United case during last year's State of the Union, that Roberts, Alito, Scalia and Thomas might go with an anti-Obamacare ruling. Breyer, Ginsburg, Sotomayor and Kagan would probably go the other way. So we're where we always are: Judge Kennedy, essentially, is the Supreme Court.

It's what I've always loved about the law: it's so rigorous and scientific.