Monday, December 13, 2010

Not Celebrating Yet

The victory for the plaintiffs in Virginia vs Seblius, where District Judge Henry E. Hudson struck down the "individual mandate" is an important victory for the cause of constitutional government. This victory is more like a first down in football, important to keep the ball moving forward, but it doesn't put points on the scoreboard. However, I'm not popping any bubbly yet. This issue will be decided by the Supremes and they won't like having a case like this. However, decided, it will be on the narrowest possible grounds, I predict.

I turned to the Volokh Conspiracy to get a sense of the pros and cons. A couple of snippets from today's posts:

Orin Kerr:

[quoting Judge Hudson] If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.
David Kopel:

3. Necessary & Proper “must be tethered to the lawful exercise of an enumerated power.” “The Minimum Essential Coverage provision is neither within the letter nor the spirit of the Constitution.” Therefore N&P can’t be used to rescue the mandate. p. 24.

4. Is the penalty defensible under the tax power? No. First, it is a penalty, not a tax. The distinction between penalties and taxes is still viable. Kahriger. Congress chose to characterize the penalty as a “penalty,” and changed earlier drafts which had called it a “tax.”

Jonathan Adler:
The federal district court’s decision declaring portions of federal health care reform unconstitutional reaffirms that the federal government has limited and enumerated powers. The theories advanced by the federal government in support of the mandate were without bounds and could have justified virtually unlimited federal control of private activity. Reforming America’s health care system is important, but just like everything else, from national security to environmental protection, it must be done in a way that’s consistent with constitutional principles.

Timothy Jost from a New York Times blog:
Judge Hudson held that this requirement exceeded the power of Congress under the Commerce Clause because it does not regulate economic “activity.”

Judge Hudson has effectively rewritten the Commerce Clause, which nowhere contains the word “activity.” This is a version of an argument that has been rejected before. In two major Commerce Clause cases, Wickard v. Filburn and Gonzales v. Raich, the party challenging the statute claimed to be outside of the stream of commerce, but the Supreme Court held that the party nevertheless had an effect on interstate commerce.
It seems that the arguments boil down to this: Since any economic activity or lack of activity will have an effect on interstate commerce, is there any limit on the power of the Congress to regulate activity under the constitution.

By the way, the Gonzales v Raich case was a California medicinal marijuana law that I thought wrongly decided which relies upon a 1930s case regulating the production of wheat for home consumption, Wickard v. Filburn that I also thought was wrongly decided. Even though I am in agreement with the outcome of the case, the tide of historical case law is running against Judge Hudson's ruling. However, given that this ruling would remove any limit on the Congress under the Commerce Clause, I am not sure that the Supreme Court will want to set such a precedent.

Note however, that the argument that the penalty is a tax was thoroughly demolished here.


  1. Jost may have drawn the wrong conclusions here. Judge Hudson went through the case law as cited-the case law determined that commerce was regulated, but not applicable in the case because the mandate has to also do with a penalty for non-commerce (passivity).

    While Jost correctly points out that the term "Activity" is not in the commerce clause, the commerce clause only applies to..well, commerce (active purchases of commodities), not non-commerce (non-purchases of commodities).

    It was also pointed out by Judge Hudson that the same assumption standard defined by Sebelius (i.e. health care is a unique field and everyone will need it) can be rightly applied to transportation, nutrition, etc.

    In other words, if the mandate stands, in the future, if congress decides that you will need a chevy volt in the future, you will have to buy one or pay a penalty (not tax).

    why are liberals so against choice all of the sudden?

  2. Drozz,
    Thanks for contributing. I truly hope your argument carries the day, I am just concerned that the Supreme Court track record isn't that great.