The passage of the ObamaCare bill and its certain signing by Barack Obama now moves the fight from Congress to the courts. While the politics on Capitol Hill will continue for at least a few days on the reconciliation sidebar bill that will go to the Senate, the main damage has already been done with the vote last night in the House. States have already begun preparations for constitutional challenges, mainly based on the unprecedented creation of federal mandates on individual citizens:
The next chapter in the health care fight will play out not only in the midterm elections, but also in the courts. Attorneys general in three states — Virginia, Florida and South Carolina — have indicated they will file legal challenges to the measure, on the grounds that it violates the Constitution by requiring individuals to purchase insurance.
In an interview Sunday, the Virginia attorney general, Ken Cuccinelli, said he intended to base his challenge on two grounds: that the federal bill conflicts with a newly passed state law that says no Virginian may be compelled to buy insurance and that Congress does not have authority to impose the mandate under its powers to regulate interstate commerce, as Democrats contend.
“This is such an incredible federal overreach,” Mr. Cuccinelli said, but added that he did not plan to ask the courts for an order that would prevent the bill from going into effect because the individual mandate does not take effect until 2013. “On our basis for a constitutional challenge, there’s no rush,” he said.
AN INDIVIDUAL MANDATE WOULD BE UNPRECEDENTED
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.
Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants. The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.
That’s because none other exists. The Constitution gives Congress the right to regulate interstate commerce, not to force individuals to purchase items from that commerce. And let’s not forget that no interstate commerce in health insurance exists, thanks to Congress keeping people from buying that insurance across state lines.
However, the politics of ObamaCare will continue to resonate this year, and into 2012. Democrats insist that they will benefit politically from the passage of ObamaCare, but the numbers and the structure of the bill strongly suggest otherwise. They jammed the bill through Congress using arcane parliamentary procedures despite the strong disapproval of their proposal among voters — between nine and 20 points, depending on the pollster. In comparison, Democrats proclaimed a landslide when Obama won office by an impressive seven points among the popular vote, one of the larger margins of victory in the past 20 years.
The structure of the bill is another problem. Very few of the benefits of ObamaCare even begin before 2014, but all of the taxes and business mandates start this year. The extra expense on businesses (Caterpillar estimated it would cost them $100 million a year) will keep companies from hiring or investing in expansion. That will kill any employment recovery in a weak economy, meaning that high unemployment will continue for the next several years. Health care will cost more, be less available, and people will remain out of work. In that kind of environment, Democrats will have to answer for their government takeover, and the results won’t be pretty — nor should they be.