It's been a tough week for Obamacare.
On Monday, Rasmussen released a poll taken the week before which indicated 60 percent of likely voters favor repeal of President Barack Obama's signature "accomplishment." Only 34 percent were opposed.
The same day a federal district judge in Virginia ruled the key provision in Obamacare, which requires Americans to buy health insurance or pay a hefty fine (2.5 percent of annual income), is unconstitutional.
Two other federal district judges, one in Michigan and another in Virginia, have ruled the individual mandate is constitutional.
The issue is whether the authority granted to Congress by the Constitution "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" permits Congress to require private citizens to buy a particular product.
It is plain from the writings of the Founding Fathers that what they'd intended is to prevent Maryland from imposing tariffs on goods from Virginia, and to keep New York from making its own trade treaties with France, Britain, or the Iroquois Confederation. No other interpretation is consistent with the Founders' notion of a federal government of specific, enumerated powers.
But the Supreme Court tortured the Commerce Clause in the 1940 case of Wickard v. Filburn, in which it held Congress could regulate how much wheat an Ohio farmer could grow on his own land to feed his own livestock. This was interstate commerce, the Court "reasoned," because if Filburn didn't grow his own wheat, he'd have had to buy wheat to feed his livestock, and he might have bought it from out of state.
Wickard v. Filburn is a vile precedent which should be overturned. But courts respect precedents, even bad ones.
Obamacare exceeded even Wickard's sweeping mandate, because the law claims that a person not doing something (buying health insurance) is engaging in interstate commerce.
This is a bridge too far, said Judge Henry Hudson: "Neither the Supreme Court nor any federal circuit court of appeals has extended the Commerce Clause power to compel an individual to involuntarily enter the stream of commerce by purchasing a product in the private market."
There are many more acts to come in this drama. The constitutionality of Obamacare likely will be debated in several courts of appeal before it makes its way to the Supreme Court.
The score so far is 2-1 in favor of constitutionality. But Georgetown University Law Professor Randy Barnett thinks Judge Hudson's decision is a game-changer.
"The government needed to run the table on all these cases to survive, and it failed," Prof. Barnett told the American Spectator.
In an op-ed in the Washington Post Tuesday, Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius dodged the legal issues raised by Judge Hudson, offering instead a political rationale for declaring Obamacare constitutional:
"Without an individual responsibility provision, controlling costs and ending discrimination against people with pre-existing conditions doesn't work," they wrote.
James Taranto of the Wall Street Journal described Mr. Holder's legal argument as "pathetically weak."
The political arguments for Obamacare are pretty lame, too. Medicare's chief actuary estimates that over the next decade it will raise health care costs by $300 billion more than they otherwise would have been. Hundreds of companies are contemplating dumping the health insurance they provide for their employees because, under Obamacare, they can no longer afford it.
To prevent this, the Department of Health and Human Services has so far granted 222 waivers from Obamacare's provisions, many to labor unions which fought for passage of the controversial law.
The huge number of waivers -- more than a million workers have been exempted -- illustrates how badly drafted the law was.
Worse, the waivers indicate replacement of the rule of law with the exercise of raw power, where equal justice for all is replaced by special favors for some.
"A waiver gives the favored organization a competitive advantage over its rivals," wrote law professor Richard Epstein. "Administrative expertise quickly takes a back seat to old-fashioned political muscle and intrigue."
Judge Hudson has struck a blow for freedom and for the rule of law. Let's hope the Supreme Court follows suit.
Jack Kelly is a columnist for the Post-Gazette and The (Toledo) Blade ( firstname.lastname@example.org , 412 263-1476).