By Eugene J. Koprowski, Esq.
Back in the 1930s, the New Deal was derailed, temporarily, by a federal court case. On Monday, President Obama's ambitious agenda to make American health care as efficient and effective as Fidel Castro's was also derailed -- but only for the time being.
A federal judge appointed by President George W. Bush, Judge Henry Hudson, in Richmond, Va.,ruled as expected on Dec. 13 on a case brought by the brilliant Virginia Attorney General Ken Cuccinelli (R) about nine months ago, on the day that Obama signed the Obamacare law.
The judge ruled -- correctly in my opinion as a legal scholar -- the federal government does not have the right to force citizens of Virginia to buy health insurance.
The lawsuit was framed narrowly to focus on the key issue -- what power the U.S.has under Article 1, Section 8 of the Constitutition of the United States to regulate commerce.
As Cuccinelli, a likely future governor of Virginia, or player on the national scene, argued, Virginians cannot be compelled by the federal government to buy insurance when they don't want to do so.
As Judge Andrew Napolitano on Fox News on Monday evening aptly asked, "Where in the Constitution does it say that the federal government is authorized to compel you to buy insurance?"
The federal judge in Richmond agreed with this legal reasoning, noting that refraining from purchasing something is not commerce. Since there is no commerce between the states involved, the Congress does not have the right to regulate the area.
Congress -- i.e. Speaker Nancy Pelosi and Majority Leader Harry Reid -- overreached.
The Congress, what is more, wasn't even honest about what the law was. The measure, on its face, claims that it intends to regulate interstate commerce. But behind the scenes, in legislative reports, written to provide judges background when interpreting the law, Democrats said, "Oh, by the way, this law is actually a tax."
Judge Hudson was not amused at this either. Napolitano called it a "fudge," which is putting it mildly.
But Obamacare, though on life support now, is not completely brain dead just yet. Obama is not, as Saturday Night Live claimed over the weekend, going on the road to cavort with Tea Party members and Glenn Beck and Bill O'Reilly as part of the "Bold Fresh Tour." Nor his he embracing a conservative constitutional stance.
He's still a socialist, he's just being checked by the courts and, next year, the new Republican House of Representatives, will provide another check on his power.
The Supreme Court of the U.S. is likely to take up the Virginia case, and other Obamacare lawsuits, soon too.
"There are 20 lawsuits," said Napolitano, regarding the remaining litigation against the president's signature initiative. "Two have gone the other way. Two other judges have ruled that it is constitutional. There is a huge one coming down in Florida in January."
Napolitano said that the focus of those cases will be whether Congress can force the states to set up health care "exchanges," information centers for consumers with one-stop-shopping information on the health insurance programs available in their respective states.
"That's where the slippery slope might come in," said Napolitano. "The Supreme Court might say that it is okay for the feds to do this."
During the Great Depression, the Supreme Court ruled that FDR overreached when his National Recovery Act (NRA) attempted to regulate the price that local kosher chicken butchers were charging in Brooklyn, N.Y. The famous Schechter case was a setback for President Roosevelt.
But then he came back a few years later and passed Social Security and other liberal laws that are with us still.
So Obamacare may be in the emergency room, but the socialist agenda is far from declared dead. Pollster Dick Morris said on Fox News on Monday of the future of Obamacare in the Supreme Court. "You can just bet in the Supreme Court that will be a 5-4 decision."
"The whole idea of the individual mandate is based on the interstate commerce clause," said Morris. "It's not commerce because not buying insurance is not commerce."
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Obama will look "very, very weak" as he reels from this ruling, and moves toward the center,to try to win re-election in 2012. But he is still the President of the U.S., and, by virtue of his Constitutional role, still very powerful. He can't be completely discounted yet.
No one Republican is the front runner to replace Obama, said Morris. My favorite is former Gov. Mitt Romney, but I like former Gov. Sarah Palin just as much, and she has a shot too. Nonetheless, Obama could still make a comeback like Bill Clinton or FDR did when rebuked during their days in office.
� 2010 Eugene J. Koprowski, Esq. - All Rights Reserved
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Attorney Eugene J. "Gene" Koprowski is Chairman of the Young Guns Conservative Fund, a non-profit, 527 political action committee which aims to keep the pressure from the Tea Party movement on the new freshmen Republicans elected to the Congress this fall, and to keep them focused on core conservative principles. The PAC raises money online to run issue ads on the Internet and on the radio and TV in the Washington D.C. metro market on immigration reform, repealing Obamacare, and other issues of importance to true grassroots conservatives. He holds a law degree from the Thomas Jefferson School of Law, a master's degree from the University of Chicago, and completed his undergraduate work at Northwestern University. An award-winning journalist, Mr. Koprowski earned an Emmy Award Nomination in 2008 from the National Academy of Television Arts and Sciences (NATAS) for his work for FoxNews.com.
See some of his opinion pieces/columns for Fox News.
E-Mail: [email protected]