Health Care and the Constitution

Libertariians are falling all over themselves with glee at the ruling by the Virginia federal judge who ruled the mandate in the health care bill unconstitutional. There were no less than four columns about this in the paper this week.

Two of the columns mentioned the question asked of Elena Kagan during her confirmation hearings, about whether it would be constitutional to require people to eat fruits and vegetables. Apparently she responded it would be a "dumb law", but she stopped short of saying it would be unconstitutional.

The whole issue is whether the federal government can mandate that you "do something" under the commerce clause. Previously the court OK'd a penalty against a farmer who grew wheat in excess of the quota, even though the wheat was for his own consumption. But the distinction all the libertarians are making is that never has the court ruled that *inaction* can constitutionally be found to be a violation of federal law under the commerce clause.

The only commentator who has commented in detail on how the Supreme Court might rule opined that it will come down to Justice Kennedy, and he pointed out that Kennedy's biography, entitled "The Tie Goes To Freedom", suggests that he will rule "on the side of liberty".

I suspect this is true, that the court will rule against the mandate. Perhaps then the federal government will do what is right and adopt real reform including a public option like the other developed countries have, at half the cost of health care in the U.S.