The Wall Street Journal published an article with this title on March 23rd, the second anniversary of the health care law.
The article poses the central issue of the constitutionality of the law: the government giving itself the power to force every American to purchase government-approved health insurance or face sanctions.
As we constitutional conservatives understand the question, if the law were allowed to stand it would, in the words of Justice Kennedy, fundamentally alter the relationship between the individual and the state. The great American experiment in individual liberty would be over. Five justices understand this and it appears that the law will fail. That the other four do not is absolutely amazing.
I think the question is still worth asking: what would a victory for liberty look like?
First, the individual mandate must be struck down. In the aftermath of the arguments before the Supreme Court this week, that seems likely. Government already forces you to do quite a few things you don't want to. Most of those things, like whether to get a drivers' license or not, do involve some choice even if the alternatives are unpalatable. Furthermore, inaction is always possible. Not with Obamacare. This makes the government our master.
Second, the rest of the law must go with it. It is far too cumbersome, far too invasive and far too intertwined for the court to try to invalidate it by bits and pieces. Just removing the individual mandate dooms the rest to failure anyway. The failure to kill the whole thing may result in the remnant destroying the country. In any case, the drafters seem to have recognized the tight-knit structure of the bill as they did not include the usual severability clause. The lack of that clause alone--and it was deliberate--should doom the whole.
Third, the Court should go further and reverse the absurd notion that the federal government can regulate commerce that is not interstate commerce. The Court has come close to overturning Wickard v Filburn several times recently--now it is time to go the whole way. The commerce clause was meant to regulate the commercial relations between the states themselves, not individual economic activity.
Fourth, the court should affirm that the Constitution means what is says it means and should be interpreted in the light of its actual words as well as the explanations of those words in the Federalist Papers, the record of the Constitution Convention, and the written documentation from the debates of the ratification conventions.
This would be a complete victory. With a victory like this we could begin to dismantle the rest of the administrative state.