Peter Ferrara

One of the unique arguments of that brief was that the uniform discussion of the lawyers in the case of the “interstate market for health insurance” made no sense, because there is no interstate market in health insurance, particularly in regard to the individual insurance that the individual mandate compels citizens to buy. All such insurance is sold only intrastate, under federal and state law. A central argument against Obamacare was that allowing health insurance to be sold interstate was a superior reform that would hold down costs through increased competition.

Having filed a brief for the ACRU in the Florida case as well, I predict that with this precedent, Judge Vinson in Florida will also rule the individual mandate unconstitutional, on the same grounds. And I predict that the Supreme Court will as well, going on to strike down the entire Act because as even the government argued so persuasively in its briefs, the legislation is unworkable without the individual mandate.

If Judges Hudson and Vinson see the issue this way, then the handwriting is on the wall that Justices Scalia, Thomas, Roberts and Alito will, too. That leaves Kennedy with the decisive vote, as the court’s liberals will typically abandon serious legal analysis and go with the politics for Obama.

What will prove crucial in winning Kennedy’s vote, in my view, is another unique argument made in the ACRU’s briefs: Congress has alternatives to achieve all of the social goals of Obamacare that would be constitutional. Justice Kennedy would be loathe to rule, I believe, that the Constitution does not allow the social goals of Obamacare to be achieved at all, leaving some without essential health care.

Indeed, those alternatives would achieve those goals at far less cost. They would involve creating a true health care safety net for the poor and the sick, through two measures. One is to provide vouchers through Medicaid for the poor to purchase private health insurance, preferably by block granting Medicaid back to the states. The other is to create taxpayer-subsidized, high-risk pools in each state that would provide coverage to the uninsured who had become too sick to purchase health insurance in the private market.

President Obama and the Democrats did not want to pursue those alternatives because they don’t involve the government’s takeover of health care. Period.


Peter Ferrara

Peter Ferrara is General Counsel for the American Civil Rights Union, a Senior Fellow at the Carleson Center for Public Policy and a senior fellow at the National Center for Policy Analysis.