Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.” According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.