Bill Murchison

In news stories about Obamacare, the usual journalistic formulation is, "This will be," "That will be," "Citizens will," "Companies will," etc.

The assumption is that you will, or he will, or whoever will, because as duly enacted and signed into law, Obamacare will -- that word again -- descend on us at a date certain. A more cautious formulation would be "would" -- the subjunctive case. Maybe, maybe not, is its meaning.

I have no quarrel with the journalistic predilection for assuming that what Congress enacts will go into effect. From the looks of things, nonetheless, the state of Obamacare is subjunctive with a capital "S" -- the latest indication being the U.S. district court decision this week in Florida, which struck down the whole law as unconstitutional and void.

The mandate to buy health insurance exceeds congressional authority under the power to regulate interstate commerce, says Judge Roger Vinson in a case brought by governors or attorneys general of 26 states. Nor does Vinson buy into the argument that the Constitution's "necessary and proper" clause confers authority on Congress in this instance to set up so vast and far-reaching a scheme. With no language to "sever" an unconstitutional portion of the law from the law as a whole, the scheme as a whole has to go.

U.S. District Judge Henry E. Hudson of Richmond, Va., reached a similar conclusion last year, except that in striking down the purchase mandate, Hudson allowed the rest of the law to stand. Now to the Supreme Court for instruction in the meaning of government.

The constitutionality of the purchase mandate is only by courtesy the central principle at stake. The main question is, can the federal government do whatever it wants to or can't it? There has been plentiful, and healthy, discussion of the question in recent months.

In the eyes of people who see national takeover of health care financing as an essential affair, the mandate is good. That would be because the mandate (on which the takeover depends) strikes them as vital, whatever it may mean for the national government to regulate commercial transactions and incidents among the states. These people's logic -- as they see it -- fails to move people who don't approve of requiring people to buy something: in the present case, insurance. The "what" in these matters -- health care -- outranks the "how" -- namely, the mandate.


Bill Murchison

Bill Murchison is the former senior columns writer for The Dallas Morning News and author of There's More to Life Than Politics.
 
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