The Wall Street Journal
A victory for liberty and the Constitution in Virginia..
Only a few months ago the White House and its allies on the legal left dismissed the constitutional challenges to ObamaCare as frivolous futile and politically motived. So much for that. Yesterday a federal
district court judge in Virginia ruled that the health law breaches the Constitutions limits on government power.
In a careful 42-page ruling
Judge Henry Hudson declared that ObamaCares core enforcement mechanism known as the individual mandatethe regulation that requires everyone to purchase health insurance or else pay a penaltyexceeds Congresss authority to regulate the lives of Americans.
The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision the individual mandate would invite unbridled exercise of federal police powers Judge Hudson writes. At its core this dispute is not simply about regulating the business of insuranceor crafting a scheme of universal health insurance coverageits about an individuals right to choose to participate.
So the issue is joined and no doubt with historic consequences for American liberty. For most of the last century the U.S. Supreme Court interpreted the Constitutions Commerce Clause as so elastic as to allow any regulation desired by a Congressional majority. Only with the William Rehnquist Court did the Justices begin to rediscover that the Commerce Clause has some limits as in the Lopez (1995) and Morrison (2000) cases.
The courts up through the Supremes will now decide if government can order individuals to buy a private product or be penalized for not doing so. If government can punish citizens for in essence doing nothing then what is left of the core Constitutional principle of limited and enumerated government powers?
Judge Hudsons opinion is particularly valuable because it dispatches the White Houses carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that then its permissible under the broader taxing power for the general welfare; and if not that then its viable under the Necessary and Proper clause; and if not that well its needed to make the overall regulatory scheme function.
But as Judge Hudson argues the nut of the case is the Commerce Clause. Justice cant now claim that the mandate is really a tax when the bill itself imposes what it calls a penalty for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate is absolutely not a tax increase.
Moreover Judge Hudson says that no court has ever extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.
Liberals are attacking Judge Hudson because he was appointed by George W. Bush but his ruling is relatively narrow. He didnt strike down the rest of ObamaCare even though it lacked a severability clause and he didnt enjoin the laws implementation pending appeal. His opinion also doesnt touch Virginia Attorney General Ken Cuccinellis long-shot claim that his states health freedom law can nullify an act of Congress. In fact federal laws that are constitutional are supreme under the 10th Amendment.
Yesterday liberals were crowing that even if the mandate is eventually declared illegal its no big deal because the rest of ObamaCares new system would remain intact. Yet theyve argued for years that the mandate is essential to health reform because the mandate is at the heart of the regulatory machine. ObamaCare without a mandate would mean individuals wouldnt have to pay into a system until they were sick driving up costs even faster and ruining whats left of health insurance markets.
While Judge Hudsons ruling is the first to declare part of the law unconstitutional more than 20 state attorneys general and the National Federation of Independent Business are also suing in Florida. Oral arguments will be heard on Thursday in that case which we think is the strongest constitutional challenge to the law.
As the Virginia case shows ObamaCare really does stretch the Commerce Clause to the breaking point. The core issue is whether the federal government can order individuals to do anything the political class decides it wants them to do. The stakes couldnt be higher for our constitutional order.
