Federal District Court Judge Henry E. Hudson in Virginia delivered a critical blow to President Obama’s health care overhaul bill Dec. 13. Hudson ruled that a key provision of the unpopular legislation, the “insurance mandate,” violates the Commerce Clause and is therefore unconstitutional. With opposition to the bill expected to escalate after the new conservative-leaning Congress convenes in January, this latest judicial defeat for ObamaCare may be the first sign of a bill unraveling from both ends.
Virginia Attorney General Ken Cuccinelli, who filed a lawsuit the same day the health care reform bill was passed in March, has consistently argued that the federal government is over-reaching its legitimate constitutional authority. He said the case was about “preserving liberty of individual Americans” and about “the outer limits of federal power under the Constitution.” The suit challenges the notion that the federal Constitution gives the U.S. Congress power to enact laws forcing Americans to buy things they do not want to buy.
In particular, the health care law seems to broaden the interpretation of the Commerce Clause to almost nonsensical proportions. Article I, Section 8, Clause 3 of our Constitution is known as the Commerce Clause. It says, in essence, that Congress has the power to regulate interstate commerce. The opinion of many is that the intention of the clause was to limit the power of the federal government. However, this restrictive interpretation of the clause has fallen into disuse in modern jurisprudence, resulting in a relatively broad construal of Congressional power in the realm of commerce. Even so, Judge Hudson said the application of the Commerce Clause in the case of ObamaCare “appears to forge new ground.”
Of primary significance in the case was the defense’s contention that the “economic activity” of not buying health insurance has an immediate impact on the health care industry when considered in the aggregate. Thus, as prior legal precedent has established, Congress has the authority to regulate this activity under the Commerce Clause. But, as Judge Hudson explained, the administration would have to demonstrate that the “non-buying of health insurance” actually constitutes an economic activity, which is highly dubious. “Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some kind of action, transaction, or deed placed in motion by an individual or legal entity,” Judge Hudson stated in his opinion of the case.
While the defense (Obama administration proxy HHS Secretary Kathleen Sebelius) argued that lacking insurance inevitably affects the aggregate, Judge Hudson argued that “[o]f course the same reasoning could apply to transportation, housing, or nutritional decisions.” The administration’s argument, therefore, “lacks logical limitation and is unsupported by Commerce Clause jurisprudence.” Judge Hudson also pointed out that, though regulation of commerce vis-a-vis the aggregate is well-established, there is significant precedent distinguishing genuine economic activity from inactivity. Only the former is clearly within the scope of the Commerce Clause; the latter is “beyond [its] historical reach.”
In an instance of legerdemain, the defense had tried to disguise the insurance mandate by calling it a “tax,” as opposed to a “penalty” (or at least, if it is a penalty, there is no relevant legal distinction between the two). The power of taxation is relatively uncontroversial, constitutionally speaking. Unpersuaded by this maneuver, however, Judge Hudson called it a “tactic to enlarge regulatory license.”
Compared to Judge Hudson’s decision, prior rulings on the constitutionality of ObamaCare have been less propitious for the opposition. Among the nearly two dozen legal challenges to ObamaCare, there was a ruling by U.S. District Judge Norman K. Moon in Lynchburg, VA. He dismissed a lawsuit brought by Liberty University arguing that the individual and employer mandates are unconstitutional under the Commerce Clause. Liberty had contended that the ObamaCare mandates penalize people for inactivity, that is, the act of not buying health insurance. But Moon said decisions about health care “substantially affect the interstate health care market.”
This ruling followed a decision in Michigan, where U.S. District Judge George C. Steeh sided with the Obama administration, ruling that if a person doesn’t buy health insurance, he or she is making a conscious decision to go without it. And if enough individuals make the same decision, everyone sips from the stream of commerce. So, congress is empowered to manipulate the flow.
Other rulings have given hope to the opposition. U.S. District Judge Roger Vinson of Florida dealt the Obama administration a blow in a case brought by 20 state attorneys general challenging the power of Congress to make everyone buy health insurance. Judge Vinson said the Commerce Clause has “never been applied in such a manner before.” It is “simply without precedent.” He also criticized the administration’s claim that the mandate was somehow a tax.
Conccinelli and the plaintiffs in the Florida case have emphasized that Congress did not include a “severability clause” in ObamaCare. That would have protected other portions of the law if some provisions were struck down by the courts. He has said he’d like to see the issue go directly to the Supreme Court.
The whole issue will eventually go to the U.S. Supreme Court. But it will likely first go to the Court of Appeals. ObamaCare’s fate being tied to the court system, where no political bargains can be struck, is no doubt troubling for the Obama administration.
Many states are preparing to fight back against ObamaCare. With the November elections behind them, new Republican governors and legislators face a flood of federal regulations involving implementation of the new health law. States are being expected to set up countless new bureaucracies in anticipation of spending billions of dollars to implement ObamaCare.
At least 42 states have either passed or introduced freedom of choice legislation or amendments designed to guard their citizens from the federal law’s objectionable “individual mandate,” according to the Galen Institute, a health research organization, in a Dec. 2 report. Many states, it said, are preparing to push back against micromanagement indicated by ObamaCare and are looking, instead, at the lightly-regulated Utah Health Exchange model. Utah’s exchange for buying health insurance “is run by fewer than five state employees.” These disputes will be settled through the judicial system.
On the legislative side, the House Energy and Commerce Health Subcommittee and the Ways and Means Health Subcommittee will “lead the charge” against ObamaCare in the new Congress, according to Congressional Quarterly. Rep. Joe Pitts (R-PA), who is to chair the Energy and Commerce Health Subcommittee, was quoted as saying repeal of the health law will pass the House, but probably won’t get past the Senate. He said he will go section-by-section through the law to inform the public on just how bad the law is.
Rep. Wally Herger (R-Ca), at Ways and Means, said dismantling of the law has already begun with the so-called “doc bill,” reimbursing doctors for Medicare, by increasing the penalty on those who might get too much federal subsidy. It “will begin to unravel ObamaCare,” Herger is quoted as saying.
Emboldened conservative legislators, all inimical to the health care bill, are poised to attack by legislative means. But a new litany of conservative state governments, and the numerous state-led constitutionality challenges still waiting to be adjudicated, also pose fierce opposition, as demonstrated by the Virginia ruling. If the constitutionality issue moves on to the Supreme Court, whose rejection of imposing federal government as of late has caused the Obama administration great consternation, the decision handed down by Judge Hudson may spell ObamaCare’s unraveling from both the judicial and legislative end.