Today’s ruling by a federal judge in Virginia, declaring the health-insurance mandate in ObamaCare unconstitutional, is not the last word by any means. But to paraphrase Vice President Biden’s line about the law, it’s a big bleepin’ deal.
This isn’t the big states’ lawsuit against the federal government over the law; Georgia and 20 other states are pursuing a lawsuit working its way through federal courts in Florida. It is, however, the lawsuit that addresses the constitutional question that so many conservatives raised during the health-reform debate: Can the federal government compel citizens to buy a particular product (in this case, health insurance)?
I haven’t read the whole decision yet, but this line of reasoning from District Judge Henry E. Hudson seems to get at the crux of the matter, in which the Obama administration argued that the Commerce Clause of the U.S. Constitution does grant the federal government this power to mandate purchasing health insurance (quote is from an Associated Press story on the ruling):
“Of course, the same reasoning could apply to transportation, housing or nutritional decisions,” Hudson wrote. “This broad definition of the economic activity subject to congressional regulation lacks logical limitation” and is unsupported by previous legal cases around the Commerce Clause.
Some of the early criticism of the ruling focuses on the use of the words “activity” and “inactivity.” As Washington & Lee’s Timothy Jost told The Wall Street Journal:
Judge Hudson has effectively rewritten the Commerce Clause, which nowhere contains the word “activity.” In the other major Commerce Clause cases of the 20th century . . . the party challenging the statute claimed to be outside of the stream of commerce, but the Supreme Court held that the party nevertheless had an effect on interstate commerce. The decision not to insure is not “inactivity,” as Judges [Norman] Moon and [George] Steeh have already held [in other challenges to the health law]. It is a decision that results in the transfer of billions of dollars in costs annually. It is commerce, and Congress can regulate it.
But Moon and Steeh are simply other district court judges; their word does not trump Hudson’s (just as his alone does not trump theirs). As everyone realizes, this question will go all the way to the Supreme Court, and the question appears to be this: If the decision not to participate in a market “is commerce,” what is not commerce? And whatever “not commerce” is, can Congress also regulate that?
The idea that Congress can force Americans to participate in a market, and then tell them how to participate in it, is completely at odds with a document intended to limit the reach of the federal government. An enumerated power almost by definition cannot be unlimited. So, where is the limit?
– By Kyle Wingfield
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