Members of the court:
The Affordable Care Act — President Obama’s national health care law — is a very, very large birdhouse built on a very tall, very thin pole: the individual mandate. It was designed this way precisely to discourage this court from toppling the entire structure by cutting out that mandate, its most constitutionally offensive part.
This peculiar design is in fact a game of constitutional chicken, undertaken on the gamble that no majority of this court would dare bring upon itself a thousand critical speeches, columns and blog posts — to say nothing of a million online screeches referencing an earlier court’s losing battle with President Roosevelt’s New Deal.
We believe that the transient majority of legislators who told us through their leader that “we have to pass the bill so that you can find out what is in it,” misjudged this court and its willingness to patrol the borders of the federal power.
We know you would not strike down such a law because of its many obvious policy flaws, or because of its deep and abiding unpopularity. If even the most spectacularly flawed law was built on a sound and constitutional assertion of the federal power, this court would leave it for the other branches to remedy those flaws.
But here the president and the Congress upset the Constitution’s balance in a profound way, seizing a power to compel purchase of insurance — a power they do not have and never have had — in order to usurp permanently powers that rightfully belong to the states.
The Affordable Care Act unleashes a new federal power not just over health care but over every aspect of the lives of citizens. It tramples the checking power of the states as it does so.
If the Congress can compel the purchase of insurance, why not the purchase of particular pamphlets and books extolling the Act’s virtues?
If the Congress can compel the purchase of insurance, why not of the Chevy Volt or of shares in companies like Solyndra?
It took some political courage for the Congress to pass this law after the public had registered its extreme dislike of the design via the election of Sen. Scott Brown in Massachusetts and of Govs. Chris Christie and Bob McDonnell in New Jersey and Virginia, respectively.
From that display of ideological stubbornness we can take a certain conclusion that the remnants of that extremely transient, extremely left-wing Congress will fight forever the repeal of the Affordable Care Act, even if another great electoral blow is struck against it this fall as was done in November 2010; even if President Obama is swept out of office in a 1980-like repudiation of his tenure and specifically of this law.
This law is a cancer, but some senators are so invested in calling it a miracle cure — enough to filibuster its repeal — that the remedy is up to this court.
It might be tempting to put the whole mess over to see if the people will speak, again, and if the Congress and a new president can overcome all the dead weight of the dead-enders claiming red is blue and down is up.
We cannot run that risk, and the Constitution does not vest you with a “wait-and-see” option.
Every month, indeed nearly every week brings a new constitutional contortion, like the demand that this Act requires Thomas Aquinas College to provide abortifacient medications to its students and faculty.
So, please, do your job. Strike the Act down — all of it — and do so quickly. For precisely such a case as this one did the great Chief Justice John Marshall declare that you “must never forget that it is a Constitution we are expounding.”
Examiner Columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at HughHewitt.com.
