This will surely keep the mandate from taking force and in fact may well lead to the Supreme Court, where a ruling is likely to be favorable on the side of liberty.
Back in June, the WSJ provided a early rebuke to Pelosi and other dems who side-step the constitutionality question.
Anyone who imagines that Congress can simply avoid the constitutional issues -- and lawsuits -- by withdrawing federal court jurisdiction over the new health system must think again.
A brief review of the Supreme Court's recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion.
This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress. In the process, the justices blew past specific congressional efforts to limit their jurisdiction and involvement like a hot rod in the desert.
Questions of basic constitutionality (however the court may define them) cannot now be shielded from judicial review. It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system. Much depends on the details and the extent to which reasonable and practical private alternatives to the national plan remain.
In crafting the law, however, its White House and congressional sponsors must keep privacy -- that near absolute right to personal autonomy they have so often praised and promoted -- squarely before them. The only thing that is certain today is that the courts, and not Congress, will have the last word."
October 24, 2009
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Healthcare
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