On Monday, a federal judge struck down the individual health insurance mandate, a central piece of the Obama administration’s landmark legislative accomplishment. Henry E. Hudson, a District Judge in Virginia, ruled that the controversial 2010 health care law’s requirement for individuals to obtain health insurance is unconstitutional. Judge Hudson argued in his 42-page opinion on Cuccinelli v. Sebelius that requiring Americans to carry health insurance “exceeds the constitutional boundaries of congressional power,” going so far as to say that the precedent would “invite unbridled exercise of federal police powers.” Cuccinelli v. Sebelius is the suit that Virginia’s Attorney General Ken Cuccinelli brought against Secretary Katherine Sebelius of the Department of Health and Human Services. The particulars of the case hinge on the Commerce Clause [3] in Article I of the U.S. Constitution, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States.” Cuccinelli argued, and Judge Hudson upheld, that while the Supreme Court has held a typically expansive view of the Commerce Clause, permitting Washington to regulate virtually all economic activities would not be constitutionally permissible. Ultimately, Hudson says that Congress can regulate economic activities once we begin to engage in them, but it cannot regulate economic decisions not to participate in an activity in the first place. In his own words:
“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”
Critics are railing against the decision as rhetorical hair-splitting that stands in opposition to centuries of precedent regarding the Commerce Clause. Orin Kerr, a legal analyst and professor of law at George Washington University, wrote [4] that “Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect.” Two other federal judges have already upheld the 2010 Affordable Care Act in its entirety, meaning that appellate courts will have to sort through contradictory opinions from lower courts in a legal battle that is expected to reach the Supreme Court where “conservatives” hold a 5-4 majority. In fact, Rep. Eric Cantor (R) is calling on Obama to request that the case move directly to the Supreme Court, bypassing the lengthy appeals process. In 1994, when President Clinton advanced the idea of an individual health care mandate as part of his proposed comprehensive health care reforms, the Congressional Budget Office concluded:
“The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”
But is it Constitutional? Only time, and likely, the United States Supreme Court will tell. By W. E. Messamore
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