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Is Repeal Possible?

The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insuranceor crafting a scheme of universal health insurance coverageits about an individuals right to choose to participate. So wrote Judge Henry Hudson of the United States District Court for the Eastern District of Virginia yesterday in striking down Obamacares individual mandate. Specifically, Judge Hudson found that Section 1501 of the act, which forces all Americans to buy government approved health insurance policies, exceeds the Commerce Clause powers vested in Congress under Article 1.

The White House and their leftist allies were quick to try and minimize this body blow to Obamacare, arguing that 14 previous court challenges have been dismissed by the courts. This desperate spin doesnt even pass the laugh test. The 42-page decision is the first by a federal court this far along the litigation process and the first brought by a state (the case was filed by Virginia Attorney General Kenneth Cuccinelli). And soon Judge Roger Vinson of the United States District Court for the Northern District of Florida is expected to rule on an even larger challenge to Obamacare brought by 16 state attorneys general, four governors, two private citizens, and the National Federation of Independent Business.

In an early stage of that litigation, Judge Vinson wrote: The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.

Judge Hudson used very similar reasoning in rejecting the Obama Administrations claim that since every individual in the United States will require health care at some point in their lifetime the federal government has the power to force Americans to buy health insurance now. Hudson writes: Of course, the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.

Judge Hudson then moved on to the Obama Administrations claim that the individual mandate was actually a tax that would therefore make it constitutional under the General Welfare Clause. Hudson wrote: This Courts analysis begins with the unequivocal denials by the Executive and Legislative branches that the [individual mandate] was a tax. It was only when the Administration found itself before a judge, not in front of voters, that the White House conveniently shifted its rationale. Judge Hudson saw through this deception, identified the individual mandate as the penalty it is, and rejected the Obama Administrations mandate-as-tax claim.

It was not a total victory for Cuccinelli, however. Judge Hudson rejected Virginias request to strike down the entire law. Despite claims by the President himself, and authors of the legislation like Senator Max Baucus (DMT), Judge Hudson found that the Section 1501 was severable from the rest of the law and voided only that section and directly-dependent provisions which make specific reference to 1501. Judge Vinson, the Fourth Circuit Court of Appeals, and the Supreme Court will all be free to revisit this issue.

But whether or not courts will invalidate just Obamacares individual mandate is rapidly becoming irrelevant. Obamacare simply may not survive that long. It is already collapsing under its own financial and bureaucratic weight. Just last week, Congress voted to stop reductions in Medicare payments to doctors by raiding future revenues from Obamacares insurance subsidy program. The number of waivers the Obama Administration has to grant from Obamacares unworkable regulations grows each day. Doctors are telling pollsters they will leave the medical profession in droves if Obamacare is implemented as planned by 2014. And according to the latest ABC News/Washington Post poll Obamacare is now more unpopular than ever, with only 43 percent approving the law and 52 percent opposed.

Obamacare will be repealed. It is only a question of when.

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