Herbert London: The Supreme Court Uphelds ObamaCare: A Sad Day For America


The America I love is disappearing from the public scene. When the Supreme Court ruling upheld the constitutionality of ObamaCare, a disturbing and, in my opinion, dangerous precedent has been created, one not different from the “separate but equal” precedent behind Plessy v. Ferguson. A majority court decision confirms the view that there are virtually no limitations on the power of Congress. Using a latitudinarian interpretation of the Commerce Clause, Congress can mandate almost anything.

Eighteen year olds are now told they must buy health insurance whether they want it or not. Suppose President Obama, adopting a page from Major Bloomberg’s playbook, obtains congressional approval for a law against sugary soft drinks or perhaps marbleized steaks arguing that these personal choices can affect national health care policy and the cost of medical care. If the precedent in this case is applied, there is nothing that can stand in the way of enactment.

Similarly, this decision legitimates government control over every aspect of health care decision making. The unique relationship between a doctor and his patient is forever compromised and the very basis for medical ethics is now called into question. For most Americans, a government bureaucrat will determine whether you receive a ceramic or titanium knee replacement or whether a patient receives a pig’s valve or an artificial valve during open heart surgery. Cost will be king and the key variable will be age.

Of course this court decision doesn’t constitute the end of challenges. Appeals will occur based on privacy matters, conscience exemption, freedom of contracts and the authority of the IRS to tax employers without Congressional authorization or statutory authority. It is also likely that a Mitt Romney presidency will call for repeal of the healthcare law.

As poll after poll has demonstrated, ObamaCare is among the most unpopular legislative actions ever adopted in this country. Most Americans are inclined to support a patient centered healthcare that empowers individuals to make medical decisions with their doctors and family members.

What is most disturbing about the law and the decision that upholds it is the arrogance behind the government’s claim. As a result of the court majority view the federal government has the power to tax whatever it considers appropriate. Whatever happened to the position that “the power to tax is the power to destroy”?

It is instructive that President Obama said, “the individual mandate is not a tax.” Now the Supreme Court says it is. If the legislation in its original form were deemed to be a tax, it never would have been accepted by the Congress. So in addition to the assumption of questionable power, the court has redefined the legislation in a manner inconsistent with its intent. Moreover, the Court has now arrogated to itself and the Congress unlimited authority to spend whatever it wants on the so-called “betterment of society” premise or the General Welfare Clause of the Constitution.

This is a sad day for limited government ideals. It is a sad day as well as for Founders of this nation who feared the assumption of power by the federal government. As a consequence of this decision, America looks very different to me, so different I can barely recognize her.

In Abraham Lincoln’s Lyceum Address he discussed “…a political religion – a temple of liberty upheld by pillars hewn from the rock of reason.” What we see with this court decision is the suspension of reason and cracks in the foundation of liberty. Yes, a sad day indeed.

Herbert London is president emeritus of Hudson Institute and author of the book The Transformational Decade (University Press of America).


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