Judge finds the individual mandate unconstitutional

For the first time, a federal district judge, Henry Hudson in Richmond, Virginia, has held that the mandate in Obamacare that every person in the U.S. must have health insurance exceeds Congressional power under the Interstate Commerce clause and is unconstitutional. Of course, this is not the end of the story; the case, initiated by Virginia and 19 other states, will go to the Supreme Court. But if the individual mandate fails, the whole Obamacare package fails, and the greatest attempt in history to turn America into a statist, unfree society will have failed.

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December 14

Alexis Zarkov writes:

This is the first time a trial court has decided against the mandate on the merits. Two other trial courts, one in Virginia, and the other in Michigan, held the mandate constitutional. Supporters of the mandate argue that Congress has the constitutional authority to enact the mandate under: (1) the Commerce Clause; (2) Necessary and Proper Clause (NAP); (3) Tax Clause. For some reason Obama Administration lawyers have pushed (3) asserting that the mandate is a tax and not a regulatory penalty, but the courts are not buying it. In this latest decision, Judge Hudson rejects the taxing argument, citing (among others) Supreme Court decision, U.S. versus Reorganized CF&I Fabricators of Utah:

“[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government.” By contrast, it went on to say, “if the concept of penalty means anything, it means punishment for an unlawful act or omission.”

Moreover the administration now appears duplicitous having argued (along with Congressional Democrats) that the mandate is not a tax. Obama himself took that position in a very public way. Now administration lawyers tell us to forget all that, we say it’s a tax, and therefore it’s constitutional. This can only serve to erode support for the Obama among independent voters.

Judge Hudson’s decision vigorously attacks the Commerce Clause argument pointing out that by the government’s reasoning Congress could mandate we buy cars because ultimately most everyone uses transportation. In a nutshell, current Commerce Clause jurisprudence gives Congress the power to regulate commerce, not compel it. Upholding the constitutionality of the mandate requires courts to break new ground.

Judge Hudson’s decision becomes somewhat weak on the NAP Clause, arguing that it only applies to enumerated powers. When this case gets to the Supreme Court, as is extremely likely, I think the strongest argument for the mandate will lie with the NAP. In my opinion this will be the battleground, and I expect a 5-4 decision. All lights will shine on Justice Kennedy.

Posted by Lawrence Auster at December 13, 2010 05:12 PM | Send