A Doomed Strategy for Fighting Obamacare

Recently, Virginia's legislature passed a law that (they hope) will "exempt" their citizens from Obamacare's individual mandate. But the law seems unlikely to survive a close examination by the Supreme Court.

Recently, Virginia's state legislature shocked Washington by brazenly passing a law that (they hope) will "exempt" their fine citizens from the clutches of Obamacare's most incendiary provision, the uber-controversial "individual mandate".  It is also being reported that as many as 35 states (almost enough for a constitutional amendment's threshold) are also debating passing such symbolic legislation.  As someone who has serious queries about a mandate without either absolute tax credits for compulsory insurance (a conservative solution) or adequate subsidies/a public option (a liberal dream), I am avidly looking forward to seeing the mandate issue hashed out before the Supremes.  But one can hardly find a more pathetic, suicidal kamikaze mission than Virginia's law (and the other possibles in its wake) would be to try that eventual case with.

There is certainly a compelling legal argument to be made – at the very least – that the federal government has never before required people to purchase a private company’s services or face fines or audits, as a legal requirement of U.S. citizenship.  (This was even admitted in writing during the Hillarycare debate in 1993-94.)  The automobile and homeowners’ insurance arguments don't wash.  If one does not drive a car (such as an elderly senior, or the many residents of Manhattan, Chicago, and San Francisco who use public transit and taxis) or own a home with a mortgage, one is exempt from those mandates.  "Cigarette taxes", taxes on alcohol and excess energy/gas usage, et cetera, are also based on activity - I must BUY cigarettes, et al, to pay the tax.

The mandate uses the IRS audit principle of "guilty until proven innocent" - I must prove that I've bought a policy from Kaiser, Blue Cross, State Farm, Prudential, etc. or I'm in big trouble.  It also sets up a chilling precedent:  in light of the recent General Motors and Chrysler meltdowns, what’s to stop the government from arguing that if you buy that Jaguar or BMW you've always wanted, or go for a Honda or Hyundai (or even a Ford!), you're taking funds from a “too big to fail” company that affects the entire U.S. economy.  Why not penalize you for refusing to buy GM?  Under this theory of the law, if the government can effectively decide your whole budget, what you can and can't “afford” – what’s to stop them?   (If a roughly $80K-a-year independent contractor says that with his mortgage jumped 2 points, and his kids in college, he can't afford health insurance - but he's "too rich" to qualify for a subsidy until he pays 8, 10, 15 percent of his income in premiums - President Obama's answer is, "Better call your realtor!")

This shocking principle might very well make the mandate (or Obamacare itself) so offensive and unprecedented that the Supremes would strike down summarily, especially in light of the McCain-Feingold strikedown.  And while liberal judges will almost surely line up behind the mandate, a “wise Latina” like Sonia Sotomayor might conceivably balk at the “one size fits all” social engineering in our diverse society, with virtually no account taken of different states’ and localities’ health situations and demographics.

Conversely, the logic behind Virginia's law, so to speak, is the old states' rights saw that the mandate "offends" the Tenth Amendment, that all powers not specifically delegated to the federal government are the province of the states.  Of course, the "interstate commerce" clause is certainly an enumerated power -- and as every Republican who watches Glenn Beck or Rush Limbaugh knows, healthcare is “1/6th of the nation’s economy!”  As that great political philosopher the Wicked Witch of the West might cackle, "Just try selling the idea that comprehensive healthcare reform doesn't affect interstate commerce - just TRY!"

The "nullification" argument has been a non-starter since Andrew Jackson.  From Brown vs. Board of Education to Roe vs. Wade to Lawrence vs. Texas, from anti-discrimination laws to "Americans With Disabilities" to welfare reform to "No Child Left Behind" to the federal income tax itself, there is simply no way that the Virginia law WON'T be overturned.  (If it were - just imagine Rick Perry passing a law outlawing income taxes, or Bobby Jindal saying he won't abide by Roe anymore, using the Virginia nullification as precedent.  Wanna bet that even Robert Bork would allow that?)

Worst of all - and most insultingly to real conservatives and moderates - that may be the real reason the Virginia law was passed (and that others are sure to be passed in the coming weeks):  NOT to actually overturn the mandate, but to cynically stoke Tea Party and conservative voter outrage when the noble Davids of Virginia are inevitably crushed by the federal Goliaths.  Thomas Frank couldn't have written it any better.

In a private email, our chief David Frum speculated that the strikedown of the Virginia law would be 7-2 or even 8-1, with Thomas the lone holdout, if it ever came before the Court.  If anything, I think Mr. Frum was being too kind.  The idea that an African-American judge who grew up under Jim Crow – even one as conservative as Thomas – would affirm that a right-wing government in a Confederate state can simply wave away whatever federal mandates it disagrees with, like a model showing off the latest prizes on The Price is Right, is not just improbable to believe.  It’s almost impossible.

The individual mandate may be bad law, and may very well be deservedly overturned in court.  But the Virginia gambit is just as offensive a law, however well-intentioned it may have been - and is the least, worst hope for judicial redress.  Bottom line:  If you are opposed to the Mandate or the Obamacare bill in general, then pray that the inevitable Supreme Court case on them won't be the one based on the law that carries us back to ole Virginny.

If it is, the mandate will just as inevitably be upheld as easily as income taxes, Medicare, and Social Security have been.  Slam dunk.  And even worse for libertarians and conservatives, the interventionist-government legal theory behind it would no longer be seen as a unique-situation fluke, but become as irreversibly entrenched in law and precedent as Roe vs. Wade and Kelo vs. New London themselves.