Timothy Benson: Supreme Court will strike down Obamacare; even Atticus Finch, Perry Mason could not successfuly argue mandate is constitutional


So wrote James Madison from Federalist 51, a passage that most of us have heard a time or two in our lives. I can almost guarantee all or part of it will be included in the majority opinion issued by the Supreme Court in June that declares the Patient Protection and Affordable Care Act unconstitutional.

The plaintiffs unmercifully pummeled the law during three days of oral arguments in front of the Supremes, leaving liberals (or progressives, or statists, or whatever they fancy to call themselves this week to avoid embarrassment) shellshocked.

CNN legal analyst Jeffrey Toobin went on the air and declared the defense of the law a "train wreck," his left hand shaking uncontrollably as he pursed his lips around a cigarette, taking short, staccato drags off it while his dead eyes pierced the television camera with a thousand-yard stare.

For liberals, the days following the conclusion of oral arguments have been filled with anguish, despair and tristesse. Solicitor General Donald Verelli has become their scapegoat, with semilegitimate griping about his inept, slack-jawed performance arguing on behalf of the Obama administration becoming legion.

To be fair, though, even if the administration had put together a dream team of Atticus Finch, Perry Mason and Cicero to argue their case, it wouldn't have made much difference. As columnist Charles Krauthammer wrote, "After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized that there actually is a serious constitutional argument to be made against Obamacare — and they are losing it."

Meanwhile, for conservatives, things have been sunshine, lollipops and rainbows, to quote Lesley Gore. The law appears dead on arrival, killed by the force of logic. Plaintiffs successfully argued that the individual mandate goes against two centuries of history and precedent.

The commerce clause of the Constitution does not automatically subject one to regulation simply by virtue of being born. As Carrie Severino of the Judicial Crisis Network states, "If the federal government has always had such a direct and unavoidable power over its citizens, it would have surely exercised it long ago, and for emergencies more pressing than health care reform, such as during the Great Depression or World War II."

Compelling individuals to buy a product is different from regulating an existing market. There is a constitutional distinction between actual and potential participation in a market. I may live in a city and use only mass transit, but that does not mean I should be forced to purchase auto insurance because I theoretically may move to a suburb at some point in my life and need a car. We all are potential participants in any and all markets we consciously choose to avoid.

And under this law, the federal government no longer has any limiting principle on its powers. If it can force us into a commercial transaction over health insurance, it can force us into any commercial transaction it so desires, limited only by the imagination of the bureaucrats implementing it.

If Obamacare is allowed to stand, a government that is obliged to control itself, as Madison stated, no longer exists, and our Constitution means next to nothing. This is why the court will see it as an affront to the liberty of the citizens of a constitutional republic with limited, enumerated federal powers. And this is why they will strike it down, and free men will be able to breathe a sigh of relief.