Republican Judge Kills Affordable Care Act

Yawn.

It really doesn't mean anything. Liberals were recently on the other side of the legal ruling issue as Judge Virginia Phillips excoriated Don't Ask, Don't Tell in a September 2010 ruling. For the most part, the ruling was important only in that it kept the ball rolling toward the U.S. Supreme Court where the ultimate fate would've eventually been decided (had congress not subsequently repealed it making it a moot issue). The lower court ruling, however, really didn't force the military to end the policy. Similarly, as much as conservatives want to celebrate Judge Vinson's ruling, it does not stop ongoing implementation of RomneyCare, er, I mean ObamaCare.

Now, I am not a lawyer. I am but a humble Derek Anderson fan who watches too much cable news. I know the main arguments for the constitutionality of the ACA have been the Commerce Clause and/or the enumerated power of taxation (i.e. it could be argued that every taxpayer has to pay a tax (with the amount based on income) that is waived if you have active health insurance - so it is an arguably an incentive rather than a mandate). That makes sense to me.

What also makes sense to me that I have not heard pundits/experts talking about is right in the Preamble to the Constitution - with equal billing to the "common defence" which is the favorite aspect of the Constitution to Tea Party types (particularly the "Tenthers" who embrace a robust interpretation of the 10th Amendment) - right in the preamble is "promote the general welfare".

Is not the health of the populice a legitimate example of "the general welfare".

Given what studies have shown regarding the perils of not having health insurance, obviously for those without insurance but also for the ~85% who do have insurance in that they end up paying for the uncompensated care of those without, I would contend this very much falls within the bounds of that mandate.

Okay, given the mandate, is the ACA constitutional? Well, again, I am not a lawyer and, unlike Nancy Pelosi, I have not actually read the bill but I will say the Constitution (Article I, Section 8) says "Congress shall have the power... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers".

Then, one arrives at the question of the court may ask is if the ACA was "necessary and proper". Fair question, of course.

I find the answer in the famous opinion of Chief Justice John Marshall in McCullough v Maryland (1819) where he declared:

Let the end be legitimate, and all means which are appropriate...are constitutional.

And, by the way, the McCullough opinion also expounds on the necessity for a loose interpretation of "necessary".

Again, I reiterate that I am not a lawyer. My only experience with the judicial system was as a defendant in the late 90s (seriously, where in the Constitution does it say I can’t moon John Engler?) But, don’t worry, I’m more mature now. What’s that? Thaddeus McCotter wants the U.S. to support Hosni Mubarak? Where are my sweatpants?