Congress Shall Make No Law Respecting Asparagus

Today in a Virginia federal courthouse, Judge Henry Hudson shot a hole through the heart of the Affordable Care Act (ACA), also known as Obamacare.  Since the ACA has not gone into full effect, it was unable to afford a cardiologist to close the hole and thus it is currently causing those who support it some serious cardiac arrest.  Or so it might seem since the impact of Judge Hudson’s ruling may well result in the lingering death of the ACA as we have come to know and love and hate it.

As you may recall, one of the key provisions of the ACA was a requirement that all Americans purchase health insurance, essentially seeking to spread the risk around when it comes to paying for insurance.  By ensuring that both the sick and the well buy insurance, the theory goes, the system’s costs can be stabilized because the overall high cost of providing care to sick people will be averaged out by the typically low costs of caring for the well.  It’s pretty fundamental math and is central to the way the cost-increasing provisions of the ACA were to be funded (e.g., adding 32 million people to the health insurance system).

Breaking from two other federal judges who had ruled elsewhere that key provisions of the ACA were constitutional, Judge Hudson opined that requiring Americans to obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution.  Remember the Commerce Clause my non-lawyer friends?  It’s the one that says that the U.S. Congress (and not the individual states, by implication) shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.  In other words, it’s the part of the Constitution that says that federal government can stick it’s hand in your wallet and outvote the States when it comes to making economic policy. Except not all the time, as Judge Hudson reminded President Obama and friends; he essentially stated that compelling Americans to buy a particular product, in this case health insurance, is beyond the powers intended for the federal government in the Commerce Clause.

In a story in the NY Times today, Judge Hudson, was quoted as saying that using the Commerce clause to justify the requirement that everyone purchase health insurance was like giving Congress “boundless” authority to force Americans “to buy an automobile, to join a gym, to eat asparagus.”  Frankly, if Congress mandated everyone go to the gym and eat asparagus, we might not be in this healthcare crisis to begin with.

So now what?  The ACA has taken more hits than Don Corleone.  The Republican Party is dead-set on dismantling it and the Courts are creating a mixed bag of messages that only the Supreme Court can settle.  There are about two-dozen legal challenges to the ACA working their way through State courts.   This means several years of legal wrangling lie ahead before the ACA can either proceed forward or die from an acute case of Darwinism (I hope it has insurance!).  One thing’s for sure:  the ACA has demonstrated once and for all how to solve America’s job crisis:  build more law schools.