A setback for Obama’s health-care law

What happened

A federal judge in Virginia gave new momentum to Republican opposition to President Obama’s health-care reform by ruling this week that it’s unconstitutional to force individuals to buy health insurance. Judge Henry Hudson said the Constitution’s Commerce Clause does not authorize the federal government “to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” But Hudson, an appointee of George W. Bush, denied an injunction to strike down the whole law, saying its fate would be decided by higher courts. The Justice Department said it would appeal the ruling.

Two previous court rulings—both by Clinton appointees—have upheld the Patient Protection and Affordable Care Act, which faces further court tests and is bound to end up before the U.S. Supreme Court. Mike Huckabee, a potential 2012 presidential candidate, quickly used the ruling to raise money for his political action committee, suggesting that GOP candidates will make repealing “Obamacare” a major issue in the 2012 presidential election. The Obama administration compared this ruling to earlier conservative objections to Social Security, Medicare, and civil-rights legislation. “Those challenges ultimately failed,” said Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius, “and so will this one.”

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What the editorials said

This ruling properly frames “Obamacare” as having “historic consequences for American liberty,” said The Wall Street Journal. Obama’s scheme depends on the government punishing citizens who don’t buy health insurance—in effect, a tax on “doing nothing.” Can Big Government get any more intrusive than that? The only flaw in Hudson’s ruling is that it “didn’t go far enough” and kill this monstrosity in its crib, said Investor’s Business Daily. But at least the judge has given “a strong momentum boost” to a repeal movement that once seemed like “wishful thinking.”

Requiring people to buy insurance doesn’t destroy liberty, said USA Today. It protects people who play by the rules from having to pay for the millions of “freeloaders” who don’t buy insurance and rely on emergency rooms. Most states require drivers to buy car insurance and doctors to buy malpractice coverage so we don’t all end up “subsidizing the irresponsible”; the same principle holds here. Instead of merely attacking this law, how about some solutions? said the Norfolk Virginian-Pilot. Granted, the Democrats’ solution is “a convoluted mess,” but Republicans are offering no comprehensive fixes for an “overstressed and crumbling” health-care system that is “too expensive and too ineffective.” If the mandate to buy insurance is ultimately declared unconstitutional, we’ll get either a scenario in which insurers can keep discriminating against sick people or one in which insurers go bankrupt. Either way, Americans lose.

What the columnists said

Hudson’s ruling is hardly a death knell for health reform, said Ezra Klein in WashingtonPost.com. It’s true that the individual mandate is a key provision, but it can be restructured so “it doesn’t penalize anyone for deciding not to do something.” For example, people could be given the right to opt out of coverage—but at the price of forgoing federal subsidies for health benefits for five years. That would provide a strong incentive to opt in. The good news for Obama is that Hudson—a very conservative judge—pointedly refused to strike down the entire law.

If the courts won’t do it, Congress or the next president will, said Jeffrey H. Anderson in WeeklyStandard.com. The elitists never took legal challenges to “Obamacare” seriously because they misread how “highly unpopular” it is. A Rasmussen poll this week found that Americans support repeal of Obamacare by “the colossal margin” of 60 percent to 32 percent. The reality is that “Obamacare is very likely to be repealed.”

Polls won’t decide the law’s fate, said Dahlia Lithwick in Slate.com. Nor will the appeals courts. So far, federal judges have come down on either side of the ideological divide on this law, depending mostly on “who appointed the judge.” In the end, its constitutionality will be decided in a 5-4 vote by the Supreme Court. Want to know who’ll win? The answer lies somewhere in the “pre-frontal cortex” of swing justice Anthony Kennedy.