This week, U.S. District Court Judge Roger Vinson downed Obamacare as unconstitutional. Congress, Judge Vinson ruled, has no power to require individuals to purchase health insurance. "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States."
The liberal commentariat are shocked. "Blatant politics," Jonathan Cohn declared in The New Republic. "Surpassingly curious" and "odd," an unnamed White House staffer told reporters; "hacktacular" and "quite the howler," said The American Prospect's blog.
How odd of a federal judge to imagine that the commerce clause does not allow Congress to do whatever it wants?
Liberal elites are simply unused to having laws they care about declared unconstitutional.
They own the courts. They own the Constitution. Gay marriage, abortion, porn? -- it's all in there, read the fine print. No matter how improbable the interpretation of the written text, with enough sophisticated cognitive reframing any Harvard professor worth his or her salt can remake the Constitution of Washington, Jefferson, Madison and Adams into a guarantor of all that sexual liberals hold dear.
The courts are the way credentialed liberals get to trump laws with which they disagree. They see themselves as defending "minorities" against the backward moral preferences of the majority.
Unless that minority is a woman named, say, Mary Brown, who doesn't want to purchase health insurance right now. The idea that Congress has no authority to make her do so is literally shocking to the collective liberal conscience.
And so the Obama administration's brief practically double-dog dared Judge Vinson (one of Ronald Reagan's nominees) to strike down either the whole act or nothing at all.
That technique backfired when Judge Vinson threw back at the Obama administration its own words: "The Act's health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms 'cannot be severed from the (individual mandate).'"
If Congress can force you to purchase private health insurance, Judge Vinson pointed out, then "Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."
"Make them eat broccoli!" the liberal professoriate replies, not at all shocked by the idea that Congress could have that power.
The greatest danger to health care freedom in this country is now the danger that Congress or the Supreme Court will strike down the individual mandate, but leave the rest of the bill standing.
That will be a backdoor way to put national health insurance back on the fast track. Why? Insurance companies would be required to accept all comers at the same rate, charging sick people and healthy people the same. Sensible people would decline to buy health insurance until they got sick and needed to access the benefits. The result would be, as Judge Vinson indicated and President Obama has argued, the collapse of the private insurance market, paving the way for more radical reform.
Will the Supreme Court overturn Obamacare in whole or in part? Overturning a law just passed by Congress is rare -- but, then, it is rare that one party used its unusually large majorities to pass a health care bill the majority of Americans opposed and continue to oppose.
In the meantime, Judge Vinson's ruling striking down Obamacare is Ronald Reagan's revenge. And unlike broccoli, it is sweet.
(Maggie Gallagher is the founder of the National Organization for Marriage and has been a syndicated columnist for 15 years.)