Obamacare: AG and HHS Secretary Conflate “Good” Policy With Constitutionality

Obamacare is in big trouble with the big court ruling yesterday.  Now, AG Eric Holder and Secretary of HHS Kathleen Sebelius, have a piece in the Washington Post explaining why they think the law will be upheld.  But mostly, it is a policy argument rather than a constitutional analysis.  From their column:

Everyone wants health care to be affordable and available when they need it. But we have to stop imposing extra costs on people who carry insurance, and that means everyone who can afford coverage needs to carry minimum health coverage starting in 2014. If we want to prevent insurers from denying coverage to people with preexisting conditions, it’s essential that everyone have coverage. Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market. The same is true for health insurance. Without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn’t work.

Pardon me, but so what?  If the provision is unconstitutional, it doesn’t (or shouldn’t) matter that it is necessary to making the law viable.

The best legal argument they offer is this:

Opponents claim the individual responsibility provision is unlawful because it “regulates inactivity.” But none of us is a bystander when it comes to health care. All of us need health care eventually. Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?

That’s really weak.  For example, faithful Christian Scientists might never participate in the health care system.  Moreover, as Judge Hudson noted in his splendidly reasoned ruling:

In surveying the legal landscape, several operative elements are commonly encountered in Commerce Clause decisions. First, to survive a constitutional challenge the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity.

The potential that someone might in the future engage in an economic activity isn’t the same thing at all.  Until they actually do, they are not engaged in commerce.  And let’s not get into the power the government would have to control our lives if lawmakers and bureaucrats had the legal authority to order us to engage in economic activities because they thought it would be good policy.

Holder and Sebelius ask us to all work together to make the unconstitutional law work.  That’s not going to happen.  Indeed, the national revolt against Obamacare is growing, the law becoming increasingly unpopular.  So instead, how about a little humility, Obama Administration?  Why not hearken to the American people, scratch this monstrosity as a well intentioned false start, and replace it with a law that expands access to coverage without centralizing and federally bureaucratizing the entire health care system.