ObamaCare: Unprecedented and Unconstitutional?


As Jesse Walker noted in today's morning links, U.S. District Judge Henry E. Hudson has rejected the Obama administration's plea to dismiss Virginia's challenge to the new health care law. As Judge Hudson held:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen's decision not to participate in interstate commerce. Neither the US Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product.

Georgetown law professor Randy Barnett, a leading legal critic of ObamaCare, calls yesterday's decision "a big step":

Since before the Senate passed its version of health insurance reform, constitutional law professors have been quoted as saying that any constitutional challenge to the individual mandate, and other aspects of the bill, are "frivolous." Indeed, some of the state attorneys general were severely criticized by local Democratic politicians and pundits for joining on to the lawsuit and thereby "wasting tax payer dollars."…

While today's ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous. This is an essential implication of today's ruling because, had they been frivolous, the motion to dismiss would have been granted. So, no matter what the outcome, today's ruling vindicates the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power.

For Reason's coverage of the legal challenges to ObamaCare, see here, here, and here.