Obamacare's No. 1 problem — the Constitution

Judge Henry Hudson has elevated the one question backers of President Obama's health care overhaul can't answer.

What part of the Constitution allows the federal government to force people to buy a private product?

Hudson, who fired the first legal shot across the bow against Obama-care's mandate to buy insurance last week, ran through a check-list of the usual suspects in his ruling. Was it the commerce clause? Nope. How about the welfare clause? Nada.

OK, then, how about the "necessary and proper" clause? That's the one that says Congress can pass laws that aren't prohibited by the Constitution and that are consistent with its letter and spirit. Once again, Hudson said the answer was no.

That isn't to say the administration and other supporters don't have an arsenal of snappy comebacks. They have plenty. Many of them emerged in a Washington Post op-ed last week by Attorney General Eric Holder Jr. and Health and Human Services Secretary Kathleen Sebelius.

If Washington can't penalize people for failing to buy insurance (the penalty would equal 2.5 percent of the offending person's income), it would be cruel, they said. This is because a New Hampshire woman they cited would not get health coverage to care for her lymphoma because it is a pre-existing condition. If you can't force everyone to buy insurance, you can't force insurance companies to ignore pre-existing conditions. Otherwise, no one would buy insurance until they feel sick.

Another answer they offered was that people who have insurance today are forced to pay extra on their premiums to cover the care of those who don't, and that's not fair. It cost $43 billion in 2008, they said, to pay for emergency room care for these people.

They even raised the old irrelevant argument that states compel people to buy car insurance, and that's constitutional. "Imagine what would happen if everyone waited to buy car insurance until after they got in an accident," they wrote.

In short, they did just about everything except directly confront the question of how the Constitution can allow the federal government to force people to buy something. This they brushed off as an old argument "rejected 80 years ago." We're not bystanders when it comes to health care. We're all going to need it. Do we pay now or later?