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.