United Liberty

Judge Andrew Napolitano joins those predicting that the health care reform bill will be struck down, although his time frame is far longer than anyone else’s:

In an exclusive interview with Newsmax.TV’s Ashley Martella, Napolitano says the president’s healthcare reforms amount to “commandeering” the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

“The Constitution does not authorize the Congress to regulate the state governments,” Napolitano says. “Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.

“That’s called commandeering the legislature,” he says. “That’s the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That’s prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

(…)

Napolitano tells Newsmax that the longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

“The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can’t simply move in there,” Napolitano says. “And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they’re doctors, nurses, or pharmacists. The feds have had nothing to do with it.

“The Congress can’t simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…”

Napolitano, though, continues to believe that the lawsuits we’ve seen filed since the law passed the House will face standing issues and that the a final ruling on the legislation is still a long way off:

For those who oppose healthcare, the Fox legal expert says, the bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational.

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that’s expected to come before the Supreme Court.

“You’re talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this,” he says.

The merits that Napolitano attacks the law on are different from what we’ve seen so far. Instead of concentrating on the Commerce Clause, Napolitano seems to be arguing that the law is unconstitutional because it imposes undue burdens on the state. While I will not pretend to be as knowledgeable as the Judge when it comes to the law, I do see some problems with his argument.

First, even if he’s right that the law includes provisions that place undue burdens on the state, that only means that those portions of the law that impose burdens on the states would be struck down. The mandates would stay. The taxes on businesses would stay. The insurance regulations would stay. The exchanges would stay. In short, it wouldn’t strike down much of anything.

Second, the Supreme Court has been perfectly content to let stand Federal coercion of the states in the past. In South Dakota v. Dole, the Supreme Court upheld a Federal law that coerced the states to raise their drinking age from 18 to 21 under threat of losing Federal highway funds. If the Court was content to allow Congress to blackmail states in this manner, its not too hard to believe that they’d uphold the federal mandates

The final issue, though, is Napolitano’s prediction that we will have to wait until after the law is fully in effect in 2014 before a legal challenge to ObamaCare will be able to satisfy Federal Court standing requirements. Assuming that’s true, then it would seem to make the chances of the law being overturned even less likely. For one thing, the makeup of the Court is likely to change significantly between now and then and, depending on who the President is after 2012, or 2016, there’s no guarantee that the Justices they would appoint would be any more sympathetic to these challenges than the current Court is likely to be.

Moreover, the longer this goes on without the law being overturned, repealed, or modified, the less likely it is that either of those three things will happen. After 2014, inertia will start to set in, and with government programs, inertia is a very powerful force.

So, I wish I could say that Judge Napolitano makes me any more optimistic about the legal challenges to ObamaCare, but it doesn’t.

Here’s the video of Napolitano’s interview: