Published for nationalreview.com, January 31st, 2011:
In October of 2009, a reporter from CNS asked then-Speaker Nancy Pelosi which provision of the Constitution allowed Congress to impose a mandate that all Americans purchase health insurance. Pelosi responded “Are you serious? Are you serious?” In case there was any doubt as to whether Pelosi herself was serious about her comment, her spokesperson Nadeam Elshami later clarified the remarks, saying “That is not a serious question. That is not a serious question.” Apparently, like Jimmy Two-Times in Goodfellas, they like repeating themselves in Pelosi’s office.
Unfortunately for them, repeating something does not make it so, as Judges Henry Hudson and now Roger Vinson have taught us. There is indeed something extremely questionable from a constitutional standpoint with the mandate to force individuals to purchase health insurance. Judge Vinson’s ruling is more sweeping than Judge Hudson’s, as it determines that the entirety of the law be overturned.
The ruling is also well-researched, as it looks carefully at the history of the Commerce Clause and its meaning. If I can be permitted a moment of fraternal pride, the ruling refers to an apparently seminal article by Judge Robert Bork and Daniel E. Troy (Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce, 25 Harv. J. L. & Pub. Pol’y 849, 861-62 (2002)) in attempting to determine the scope of the Commerce Clause. And like Pelosi, Elshami, and Jimmy Two-Times, the ruling refers to the article twice. In fact, Judge Vinson’s ruling appears so grounded in the Constitution, quoting the Federalist Papers, Madison, and Hamilton, not to mention Bork and Troy, that it almost makes one worry that other, more “modern” judges ruling on the issue won’t be swayed by its argument.