Today, U.S. District Judge Henry E. Hudson ruled that ObamaCare’s individual mandate requiring all adults to purchase health insurance is unconstitutional because it exceeds the enumerated powers of the federal government. Conservatives in general, and Tea Partiers in particular, are unfurling their “Don’t Tread on Me" Flags in celebration because they think Judge Hudson struck a blow for individual liberty and limited government. That, at any rate, is what the guy who brought the suit, Virginia Attorney General Ken Cuccinelli, is saying: "This case is not about health insurance,” he insisted “It is not about health care. It's about liberty."
But, strictly speaking, it isn't. The question before the District Court wasn’t whether government as such has the constitutional authority to compel people to buy health insurance, but whether the federal government does. The government of Massachusetts is already enforcing an individual mandate that is identical in all material respects to the one contemplated by ObamaCare. That hasn't provoked a constitutional challenge because, as far as I know, there’s no colorable legal argument to the effect that individuals have a constitutional right not to buy health insurance. To find such a right, a judge would have to scan the penumbras cast by various provisions of the Bill of Rights in an exercise of judicial activism that would have made William O. Douglas blush.
Before they get carried away, straight-laced federalists and conservative libertarians should contemplate the paradoxical implications of Judge Hudson’s opinion. As far as I can see, it would be perfectly constitutional under his analysis for Congress to enact a single-payer health care system. Health care services are surely an article of interstate commerce, and thus subject to federal regulation under the commerce clause. And the federal government clearly has the taxing power to make each taxpayer pay for everyone’s health care, including his own. Yet, by all accounts, a single-payer system would be a much larger expansion of federal authority at the expense of state sovereignty than ObamaCare. Moreover, every conservative I know would regard it as a much more serious assault on individual liberty.
I regard the fact that Judge Hudson’s opinion has such paradoxical implications as pretty compelling evidence that it’s legally unsound. That, however, is a matter as to which reasonable people can and will disagree. Yet conservatives should still be careful about what they wish for.