Outside of Egypt, probably the most interesting story this week has been the Florida judge striking down the entirety of the Obama health care bill, in a decision that was a very original piece of originalism, a sort of abstract originalism, ignoring prior precedent with a free-hand Jackson Pollock- like splatter.
What is surprising about the ruling is that while all progressive pundits now expect a close 5-4 decision among the Supremes, a year ago they all predicted that the bill would not really face a stiff constitutional challenge. What has changed is not the standard interpretation of the commerce clause, but the united opposition of Republicans to the bill, and of course judges follow the election returns, and it never is difficult to come up with constitutional arguments for or against any position.
This is unfortunate, but I suppose not too surprising. And every piece of major legislation typically faces a similar trial by constitution, back to John Marshall and the Indians, Roger Taney voiding the Kansas-Nebraska Act in Dred Scott, the Lochner case, and the Schechter Poultry case, which ruled the NRA (National Recovery Act) unconstitutional in 1935. Politics then goes on to decide who, in the end, gets to win. Its interesting that in his decision to void the Obama bill, Judge Vinson cited Schechter Poultry several times, and the Health Care act is a similar type of fowl to the NRA, a close and very complex regulation of private business for a public purpose. And as we know, though the New Deal went onto triumphs after the Schechter Poultry decision, the NRA itself was never revived, and the New Deal thereafter either created programs that directed aided citizens (like Social Security), or regulated aspects of a business (the Wagner Act, the Wages and Hours Act), and not the purpose of business itself. Perhaps we will stand at a similar crossroads with health care. If the health care law is declared unconstitutional because of its myriad corporatist compromises, the lessons for progressives should be clear. A single payer law, a bill of unquestioned (I would think) constitutionality, is the way forward, as it always should have been in the first place.