If there’s a single takeaway from U.S. District Judge Henry Hudson’s ruling that ObamaCare’s individual mandate to purchase health insurance is unconstitutional, it’s this: If Congress wants to regulate the health insurance business, it will have to do so without trampling over an individual's right to self-directed economic choice.
As Jacob Sullum has already noted, choice is indeed at the heart of yesterday's decision. The 42 page ruling is heavy on both legal specifics and logical nuances, but also effectively underlines the larger significance of the debate over the individual mandate with the following passage:
The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision [the mandate] would invite unbridled exercise of federal police powers. 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.
The Commerce Clause gives Congress the power to regulate commercial transactions across state lines as well as “activity that substantially affect” interstate commerce. The Obama administration urged what Judge Hudson called “an expansive interpretation of the concept of activity,” making the case essentially based on the idea of economic ripple effects: Because both the purchase and non-purchase of health insurance have a substantial effect on those interstate transactions, the federal government has the authority to compel individuals to purchase insurance.
For Judge Hudson, a crucial factor in the case was determining whether not purchasing health insurance constituted a form of “activity.”
Like other judges who have considered the mandate’s constitutionality, Judge Hudson took time to discuss the two Supreme Court cases which are generally agreed to have established the most expansive interpretation of Congress’ power under the Commerce Clause. In the first, 1942’s Wickard v. Filburn, the Court ruled that Congress could regulate an individual’s decision to grow wheat for personal consumption even though doing so involved no commerce and no crossing of state lines. In the scond, Gonzales v. Raich, the Court ruled similarly that the federal government could regulate the growth of marijuana on personal property for personal use even if it was never sold and never moved across state lines. (For a more detailed discussion of these cases, see Damon Root’s “The Cost of Doing Nothing.”)
But according to Judge Hudson, the government cannot rely on the authority granted in those rulings because both dealt with the regulation of an individual’s explicit, conscious choice. As he writes, in both instances, “the activity under review was the product of a self-directed affirmative move to cultivate and consume wheat or marijuana.” Indeed, according to Judge Hudson, in every case where the Supreme Court has blessed an activity based on the authority granted by the Commerce Clause, the federal government’s regulatory powers have been “triggered by some type of self-initiated action.” Self-direction and affirmative self-initiation, then, become key to the judge’s ruling.
As for the Obama administration’s “expansive interpretation,” the judge pushed back against the idea that economic ripple effects were enough to authorize regulation: “The same reasoning,” he wrote, “could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to constitutional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.”
All of which is to say that the ruling puts the discussion in the framework where it has always belonged: An individual’s right to choose, and, in particular, to choose to opt out of an economic transaction.