The Judge Says 'No'

Bill Murchison

12/14/2010 12:01:00 AM - Bill Murchison

Were the people of our nation wise and generous enough to endow me with the presidency, I would proceed to the enactment of major reforms. I would immediately and forthwith restore Southwest Conference football. I would abolish Daylight Savings Time and the designated hitter rule. I would call on the whole wide world to restore the horse cavalry and put away every weapon invented since 1815.

Of course, it wouldn't be constitutional under the Constitution as presently written -- a minor point to Barack Obama and Nancy Pelosi -- but not -- praise the Lord! -- to U.S. District Judge Henry Hudson (of Richmond, Va.), who has rendered a decision remarkable for common sense. Not many decisions handed down by federal judges are remarkable in this way, but Hudson's is. He says the Constitution forbids Congress to require/force/compel/coerce/press-gang citizens into buying health insurance.

Judge Hudson squints at the Constitution, likewise at all reported decisions from the federal appellate courts. He can't find anything authorizing Congress to require/force, etc., the doing of a deed the citizen may in fact oppose.

He thinks, in other words, the federal government can't do anything it chooses to do. Did you ever!

The new federal health care scheme, conventionally called Obamacare, is premised on the government's right, as the government sees it, to turn the existing health care arrangement inside out and decree a new system -- as Kublai Khan decreed his stately pleasure dome.

The goodness or badness of the federal approach is not the issue here -- not in the abstract terms of would-it-work. The issue is, has Congress the constitutional power to do all this? That's to say, without an amendment conferring that power. Judge Hudson says no.

He's almost certainly right. Being right in constitutional construction, together with two bucks, will get you a cup of Starbucks coffee. For decades -- specifically, since the late New Deal -- the federal courts have stretched the constitutional language far enough to cover practically anything enacted by Congress. To Judge Hudson, the language seems badly overstretched. He knows the Supreme Court will have the final say. Nonetheless, his 42-page decision sets the stage for contemplation of the lassitude, the laziness, with which our rulers in Washington contemplate language intended not to expand but rather to restrain their powers.

Hudson, hearing the case, asked why an order to buy health insurance isn't like an order to eat asparagus. Both could be construed as " beneficial" to us, couldn't they? Then why can't you do it?

For the same reason, I couldn't reconstitute the Southwest Conference football, boon though it would be to fans that don't understand (as I do!) how good it would be for them. Neither I nor anyone else has power of the sort necessary to get the job down. Free speech, yes. Coercive power -- the power of the handcuff, shackle and leg iron -- no.

The Constitution carefully, prudently defines what the federal government may do. After deleterious experience with a British crown and Parliament desirous of doing "good things" for the colonies, irrespective of colonial preferences, the Founding Fathers wanted raw power checked and restrained. They couldn't anticipate every possible power grab that the future might inspire, but knowing human nature as they knew it, they anticipated greed and overreach would march with valor and kindness.

The present Congress -- soon to lose further sway over us, praise Jupiter -- doesn't worry about such trifles as proper, duly delegated authority. It wants results, actions and deeds. To say thus-and-so should be is to justify the act of putting thus-and-so in place.

Then there's Judge Hudson, one of three federal judges thus far to rule on Obamacare. The other two said to Congress fine, go head, tell the peasants what to buy, how much to pay, etc. Judge Hudson says, in essence, such notions contract rather than expand liberty. "Urge," in other words, isn't the same thing as "do it, dammit." What a great thing to hear such good sense from a federal judge's mouth. Let us savor the unaccustomed flavor while it lasts.