A Ruling Based on the Constitution; Obamacare Mandate Unconstitutional

Full Disclosure: I am not a lawyer nor a trained legal scholar.

This is what a real judicial ruling looks like, one based on the U.S. Constitution, compared to other “rulings” based on the talking points of the Democratic Party. Judge Henry Hudson of the Eastern District of Virginia, appointed by President George W. Bush, overturned the Obamacare mandate requiring individuals to buy health insurance in Virginia v. Sebelius, although he left the rest of Obamacare in place. He accepted plaintiff’s arguments (those of Virginia’s Republican Attorney General, Ken Cuccinelli, along with those who filed amicus briefs supporting Virginia) that the federal government exceeded its authority under the Commerce Clause, which also means that the government can’t claim the mandate is Constitutional under any other Clauses.

Let’s delve into this.

As in the other cases, the government had argued that the act of an individual not buying something could be regulated by Congress as interstate commerce, relying on the very questionable Wickard (wheat grown for personal use could be regulated by Congress as interstate commerce) and Raich (home-grown and used marijuana was also subject to the Commerce clause) decisions as precedent (both rulings dealt with some kind of relevant activity, which isn’t the case with the Obamacare mandate); in effect, inactivity was going to be under the purview of the federal government. As I had mentioned in my previous posts, this is tantamount to turning the people into serfs meant to serve the government, not the other way around, to have the government protect the rights of the people and serve the people, as outlined in the Constitution. Hudson blows away the government’s point (page 23-4 of the PDF) [emphasis mine]:

The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct affect on interstate commerce is well settled. Gonzales, 545 U.S. at 22, 125 S. Ct. at 2209. This even extends to noneconomic activity closely connected to the intended market. Hoffman v. Hunt, 126 F.3d 575, 587-88 (4th Cir. 1997). But these regulatory powers are triggered by some type of self-initiated action. 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. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

Not only that, Hudson then rejects another of the government’s arguments:

Because an individual’s personal decision to purchase-or decline to purchase-health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary.

In other words, when a statute fails under one provision of the Constitution, it fails under all provisions.

As with Liberty University v. Geithner, Hudson rejected the government’s hypocritical argument that the penalty was a tax and not subject to judicial review. The judge saw through this façade by noting how the administration and Congressional Democrats made a big show about how the penalty wasn’t going to be a tax on individuals who have an income that is less than $200,000 per year (for families, $250,000) to avoid the political fallout of breaking one of Barack Obama’s major campaign promises (which all have an expiration date in any event). Hudson points out various sections in Obamacare where there is a tax, but that the mandate isn’t one.

Obamacare did not have what is called a severability clause, which allows the courts to strip potentially unconstitutional parts of a law out while leaving the rest in place, meaning, in the theory, the whole law stands or falls if one part fails. However, Hudson left the remainder in place while only striking the individual mandate “and directly-dependent provisions which make specific reference” to the individual mandate. As mentioned by lexington_concord at RedState, this could leave a big problem for health insurance providers since other items, such as keeping intact the requirement that providers cover people with pre-existing conditions, could cause these providers to go bankrupt; I reject that argument since I have always been covered by insurance and have always had a pre-existing condition, asthma. Mark Levin, on the other hand, thinks Hudson’s striking down only the mandate was quite appropriate since parts of other laws that didn’t have a severability clause, such as Sarbanes-Oxley, were struck down as well; Levin also noted that Hudson’s decision was very strong on the merits (Levin’s Landmark Legal Foundation filed one of the amicus briefs in support of Virginia). So I’m not so sure that the ruling is at all problematic in that regard. In fact, I think it will help Republicans argue that the whole law should be repealed since the major funding for it, the mandate, doesn’t pass muster under the U.S. Constitution, and Virginia v. Sebelius, even as it stands now (before reaching the 4th Circuit and the Supreme Court), provides the juice to get the repeal done.

But of course, it isn’t a slam dunk that Hudson’s ruling will prevail. As with all of these cases, it will come down to how the Supreme Court rules, and specifically which side Justice Anthony Kennedy will take. The best thing will be to repeal it completely to render any court decision moot.

Erick Erickson points out something quite humorous said by Josh Marshall, although I’m sure Marshall didn’t intend for there to be humor:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.

That statement is also quite striking. Erickson notes that conservatives have been making this argument for well over a year; but to Marshall, we don’t exist. It just goes to show that some statists really do live in a bubble.

But not all of them. Atrios:

I’m no constitutional scholar like Ann Coulter, but given my good enough for a blogpost understanding of this I actually don’t think it’s insane to rule that the individual mandate is unconstitutional.

So it isn’t as if some liberals are completely clueless. But it would seem to be that the vast majority are, especially those like Josh Marshall.

I should also add that according to some of these statists, a rejection of Obamacare as it exists today provides a strong argument for the government option, where there is some kind of Canadian-style government payer system or an outright government takeover, as is the case with Great Britain, of the entire health care industry. What these statists refuse to understand or acknowledge is that the primary purpose of the federal government is to defend the Constitution, the people, the rights of the people, and the country, not become the sole payer or provider of health care; in other words, the parts of the government that have to do with its primary role would have to be stripped to pay for turning health care into a public utility. In a world where the United States as the sole superpower is losing ground to very dangerous rivals and enemies, it is ridiculous to turn the federal government into a health care bureaucracy. Of course, the statists that do want this to happen are the ones who refuse to acknowledge the failure of communism and socialism.