I should have gotten to this earlier, but I started feeling somewhat poorly last night, and spent just about all of today lying on what I thought was my deathbed. But since I feel better . . .
The Obama administration’s health- care overhaul unconstitutionally requires Americans to maintain a minimum level of health insurance, a federal judge ruled, striking down the linchpin of the plan.
U.S. District Judge Henry Hudson in Richmond, Virginia, said yesterday that the mandate on individuals in President Barack Obama’s health-care legislation goes beyond Congress’s powers to regulate interstate commerce. Hudson severed the issue of the mandate, which is set to become effective in 2014, and didn’t address other provisions such as expanding Medicaid.
“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate,” wrote Hudson, who was appointed by President George W. Bush in 2002.
The ruling is the government’s first loss in a series of challenges to the law mounted in federal courts in Virginia, Michigan and Florida, where 20 states have joined an effort to have the statute thrown out. Constitutional scholars said unless Congress changes the law, its fate on appeal will probably be determined by the U.S. Supreme Court.
Virginia Attorney General Ken Cuccinelli, who brought the suit, said his office has spoken with lawyers from the Justice Department about asking the U.S. Supreme Court to take the case without a review by the federal appeals court in Richmond. Tracy Schmaler, a Justice Department spokeswoman, said she had no comment on Cuccinelli’s statement.
A senior Obama administration official said that an appeal of Hudson’s ruling was likely and also expressed confidence that the legislation would be upheld.
“This is only round one,” Cuccinelli said, during a news conference at his office in Richmond. “This lawsuit is not about health-care, it’s about liberty.”
Oddly enough–or perhaps not–E.J. Dionne cites this decision as “legislating from the bench.” I do recognize that there is a rhetorical virtue in trying to make conservative judges appear hypocritical on the issue of judicial restraint, but that really doesn’t change the fact that the lack of restraint on this issue is with the Obama Administration, and Congress, which invoked its Commerce Clause power to, for the first time in American history, mandate that Americans purchase a product from a private company, lest they be fined for not doing so. Judicial restraint does not, of course, entail having the courts accede to this abuse of the commerce power, and while elected branches may well be owed some deference by the courts, the deference is not complete and total, something that Dionne seems not to understand.
For a smarter take on this issue, one should consult the great and good Richard Epstein:
The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.
The key successful move for Virginia was that it found a way to sidestep the well known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.
At this point, no District Court judge dare turn his back on the ignoble and unprincipled decision inWickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.
It is just that line that controls this case. The opponents of the individual mandate say that they do not have to purchase insurance against their will. The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case it could be done in all others.
[. . .]
The government finds itself here in a real pickle. Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance. The ironic point is that this is not a commerce clause argument as such, for in my view any state statute would be subject to the same objection even though the state has plenary police powers.
So how does it stand? If you know which way Justice Kennedy will vote, you have a pretty good shot of getting the final outcome. But if one plays the odds, this is a 12 round fight. As of today, ObamaCare is losing on rounds.
The Supreme Court case ought to be a doozy.