Health care's challenge

So far, two federal judges have found the so-called Obamacare legislation to be constitutional and one, Judge Henry E. Hudson in Virginia, ruled this week that it is unconstitutional. A judge in Florida is expected to hear challenges from 20 states this week.

Clearly, this is an issue headed to the Supreme Court, and the sooner the better.

Of all the rulings so far, the one Hudson issued Monday was the most compelling. Simply put, the Constitution does not allow the federal government to punish people because they refuse to buy something, in this case insurance. Hudson's ruling said this mandate "appears to forge new ground and extends the commerce clause powers beyond its current high water mark."

The Constitution's commerce clause, that allows Congress to regulate interstate commerce, has been stretched over the past century to include many things that don't fall under a traditional definition of interstate commerce. Hudson, however, relying on recent Supreme Court precedent, said that the commerce clause has outer bounds, and the insurance mandate falls outside those lines. To that we say, good call.

Hudson also took pains to dismantle the government's argument that the insurance mandate was allowed under the "necessary and proper clause," which courts have long held allows Congress to pass laws that aren't prohibited by the Constitution and that are consistent with its letter and spirit. That, too, was going too far, he ruled.

So was the use of the Constitution's "general welfare clause," which allows Congress to provide for the "general welfare of the United States." This, too, has been used through the years to justify a host of programs. Hudson said the health care law runs afoul of this clause by referring to the fee for failing to buy insurance as a penalty, not a tax.

While Hudson didn't strike down the entire law, the insurance mandate, he said, invites "unbridled exercise of the federal police powers." It would, as others have argued, set a dangerous precedent that would set no limit to the power of Congress other than its own imagination.

The state of Virginia brought the lawsuit, contending the new law conflicts with a state law that prohibits the government from forcing people to buy health insurance. Other states have passed similar laws.

Without the insurance mandate, the Obamacare law becomes essentially useless in its effort to reduce the number of uninsured people in the United States. It may send the entire law back to the drawing board, where a new Congress might be able to draft something that includes tort reform and encourages greater private-sector competition.

The provision in Obamacare that requires insurance was not scheduled to take effect until 2014. Regardless of how quickly the high court tackles this issue, we hope it rules on the side of the inherent liberty Americans always have enjoyed to make their own purchasing choices and on the side of limited congressional powers.