The Crucial Role of Choice in Henry Hudson's Opinion


To overturn the provision of the Patient Protection and Affordable Care Act that requires Americans to buy government-approved health insurance, U.S. District Judge Henry Hudson had to distinguish it from the laws upheld in Wickard v. Filburn (1942) and Gonzales v. Raich (2005), the two Supreme Court cases that "staked out the outer boundaries of Commerce Clause power." In Wickard the Court said a farmer who grew wheat for his own consumption could be fined for exceeding federal crop quotas, even though the grain never left his farm, because such self-sufficiency, taken in the aggregate, has a substantial effect on the interstate market in wheat. In Gonzales the Court applied a similar argument to homegrown marijuana, a commodity the government seeks to eliminate rather than regulate. Thus was the authority to "regulate commerce…among the several states" deemed to cover activities that were neither interstate nor commercial. But as broad as these rulings are, Hudson perceives a crucial criterion that is lacking here:

In both cases, the activity under review was the product of a self-directed affirmative move to cultivate and consume wheat or marijuana. This self-initiated change of position voluntarily placed the subject within the stream of commerce. Absent that step, governmental regulation could have been avoided….Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity.

In this case, by contrast, people become subject to the insurance requirement simply by existing within the borders of the United States. Hudson rejects the Obama administration's argument that the decision not to purchase medical coverage makes one subject to regulation under the Commerce Clause because, together with similar decisions by millions of other people, it has a substantial impact on the interstate health care market:

The same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence….

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I….

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, the 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.

I discuss the implications of the Obama administration's Commerce Clause argument here and here.

NEXT: Reason Writers on Freedom Watch: Matt Welch Talks Tax Deals With Judge Andrew Napolitano

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  1. One of the best arguments for leaving as much of human activity as possible unlegislated is seeing the conceptual gymnastics in these rulings that are apparently necessary to bolster the simple idea that just because people exist, that doesn’t mean they should be forced to do things they don’t want to do!

    1. Beat me to it.

  2. Teh thing I hate about these judicial rulings is having to step through a mine field of previous bad decisions to justify what many of us are pretty fucking obvious.

    I had never heard of the filburn decision. You mean to tell me that it is under any circumstances illegal for a whear to grow wheat?

    We were totally fucked so long ago, I wonder why we even continue to give a fuck.

    1. man, no preview, no sense.

      …previous bad decisions to justify what TO many of us are pretty fucking obvious.

      … circumstances illegal for a wheaT FARMER to grow wheat?

      1. No worries.
        I thought that “whear” was some sort of high-fallutin’ word that meant “wheat farmer”.


        It was a typo!

        1. “Whear” does sound pretty cool, actually.

          I propose that we refer to “wheat farmers” as “whears” from now on.

          1. Fight song: Twisted Sister’s “Whear Not Gonna Take It”

          2. All your whears are belong to us — and their wheat, too.

          3. Dirty little whears, being peemped out by the feds!

    2. Filburn: Congress can forbid you from growning wheat for your own personal consumption because wheat is sold in legal interstate commerce. If you didn’t grow it, you might buy wheat in interstate commerce. Your absence in interstate wheat commerce affects interstate commerce.

      Raich: Congress can forbid you from growing marijuana for your own personal consumption even though there is no legal interstate commerce in marijuana.

      PPACA: Congress can compel you to purchase insurance for your own good.

      1. I admit I had never heard of Filburn before, but it seems very similar to the PPACA case to me. Couldn’t one make the exact same argument that by not buying insurance you’re affecting interstate commerce? Or put another way, how important is it in Filburn that there was wheat being grown, vs the assertion that the government can make you participate in markets.

        1. Since health insurance can’t be sold across state lines, maybe not.

          1. I just thought of this. If the Republicans are successful at getting insurance sold across state lines (although I do agree with their reasoning in doing so) health insurance would then involve interstate commerce, thus making the mandate constitutional (at least if Wickard v. Filburn isn’t overruled – which it should be).

        2. Because in Wickard, the farmer was growing wheat and consuming it, which meant he didn’t purchase wheat, which affected interstate commerce.

          With the individual mandate, the person not buying health insurance is not doing something. That’s the whole point here.

          1. Yes, not doing something, which then affects interstate commerce. Just like everything, from gay sex to political speech. Which is why, fuck free trade, The Commerce Clause Needs To Go.

            1. The commerce clause is fine. It is this idiotic interpretation that “indirectly affecting” commerce can be regulated by the federal government. It is so stupid that it doesn’t pass the giggle test, and yet here it is as the law of the land.

              I actually had someone arguing on another site that “the people” (including him) like the constitution this way, because it doesn’t just give the congress the power to do bad things, it also gives it the power to do all of the good things that we want it to do. There’s really no arguing with that level of ignorance. But I fear he’s right. Most people are just fine with unbridled power in the hands of the government. Heck, I doubt most people suspected there was a limit to the power of government. And they are perfectly fine with that. It truly is a Brave New World….

              1. They are only fine with the unbridled power of the Federal government because it gives them a welfare state with lower taxes than other developed countries. Of course, all the services are paid for by giant deficits.

                At some point the Federal government isn’t going to have to stop running massive deficits, which will mean high taxes and cuts to treasured programs like Social Security and Medicare. I’m thinking when that day comes, Americans will no longer be so happy with their eroded constitution.

      2. Conclusion: the law is what our masters say it is.

        1. And with my limited SCOTUS knowledge, I’m assuming that this was the same packed court that FDR set in place to rubber stamp his welfare state legislation. And the same court that ruled for internment of US citizens.

          I’ve never understood why once one stupid judge says something, we need to kneel down in front of it as precedent. If you’re wrong, you’re wrong, and praying to it doens’t make it right.

          1. “It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly.”

            1. Jonathon Swift agrees with me.

          2. The reason they go by precedents is predictability. Supposedly if you can easily figure out what a judge is going to say, you can order your life with less uncertainty.

    3. I would love to see a modern judicial ruling that cited the U.S. Constitution itself and no previous court decisions. That would be awesome. And, just once, I would love to hear a judge in a case like this say “The Constitution means what it ACTUALLY says it means.”

  3. The key question is where Hizzoner comes out on the whole cupcake issue.

    Is he with the buildingists or the mobilists?

    An anxious nation awaits the answer with bated breath…

    1. That was the worst of an entire week of questionable threads. The deeper in I got the more I felt the higher attributes of my gray matter boiling away inside a white hot pot of brewing stupid. I had to get out of there. It was mostly Tulpa’s fault, but he had a few assist.

  4. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

    That’s exactly what Wickard does, and I think the Judge knows it, but I give him kudos for coming up with a facially plausible distinction (the “This self-initiated change of position voluntarily placed the subject within the stream of commerce.”

    He has constructed a very ingenious trap for SCOTUS here.

    Assuming they want to avoid making the Commerce Clause a plenary grant of authority to the federal government (I know, I know), then they can either

    (a) Sign off on a “distinction without a difference” and create a precedent that will inevitably someday conflict with Wickard, or

    (b) Overturn/limit Wickard.

    Unless they just give up and give the feds plenary power, I think they’ll go with (a).

    This will leave to a future Court the task of explaining why declining to buy wheat on the market in order to be self-sufficient is “entering the stream of commerce”, while declining to buy health insurance on the market in order to be self-insured is not.

    1. This self-initiated change of position voluntarily placed the subject within the stream of commerce. Absent that step, governmental regulation could have been avoided.

      This doesn’t bode well for the self-insured.

    2. He wasn’t being fined for not buying wheat. He was being fined for exceeding the wheat quotas with wheat he himself grew

    3. That’s exactly what Wickard does, and I think the Judge knows it, but I give him kudos for coming up with a facially plausible distinction

      Per Levin on his radio show, the legal strategy from the Va AG and in the amicus briefs was *not* to challenge Wickard, but to accept and stipulate it as the established case law, and then show that the government’s case violated the standard because doing nothing is not commerce.

    4. Go read Wickard again.

      Wickard voluntarily grew more wheat than what was allowed.

      1. “allowed”

        There’s where it was fucked up in the first place. Telling farmers they can only grow X amount of *anything*, that’s fucked up shit.

        1. Of course it’s fucked up. It’s FDR we’re talking about here.

      2. Am I missing your point. Because the entire point of the case was whether the federal government had the constitutional authority to regulate what was previously thought to be a non-commercial, intrastate activity.

        If I’m understanding your point, then your handle is a complete misnomer. And sanctimonious. And you’re just dead wrong.

        1. The sale of wheat was commercial interstate activity, that was not in doubt. Growing wheat in Wickard wasn’t previously thought to be a non-commercial, intrastate activity like you state. The first impression question the court dealt with was whether Filburn’s activities constituted commerical activity. Again, to be clear, whether Filburn’s VOLUNTARY activities were commercial activity.

          The farmer’s extra wheat produced was a voluntary action, just like his wheat produced up to the quotas at the time. That is the distinction between that case and today’s ruling. So no, Wickard did not involve compelling the farmer to conduct any action in order to classify his actions as involving interstate commercial activity. Again, Filburn was already conducting this activity, it was a question of whether his activity, already voluntarily conducted, could be considered part of interstate commerce.

      3. * Am I…?

        1. Slow down.

          I’m not sitting here in front of my computer just waiting to respond back to comments.

          1. I was correcting my grammar, not asking for a response.

            1. That’s not my point, that it was compelled at all. I’ve read this case in law school, read it again, and Wiki’d it last night.

              My original point: “Because the entire point of the case was whether the federal government had the constitutional authority to regulate what was previously thought to be a non-commercial, intrastate activity.”

              From Wiki, the summarization of what the holding meant

              “…reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly *intrastate, non-commercial activity*if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.”

              So, um, there ya go. The Wickard expansion of the commerce clause was significant because it opened the door to regulate activities previously thought non-commercial and intrastate. I hope you’re at the computer to respond.

              1. Here’s the quote that you responded to:
                “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter …..”

                And your response:
                “That’s exactly what Wickard does…”

                So you were addressing the voluntarily nature of entering the stream of commerce. Don’t move the goalposts, you were directly responding to the voluntary/involuntary nature of an act, and claimed that’s what Wickard addressed.

                1. No, and you’re becoming a twit. you’re quoting shit I didn’t ever say, nor imply. I didn’t write that. At all. Go read my comment again.

                2. By the way, don’t ever, ever put quotes around shit I did not say and then presuppose shit. That speaks volumes to your…whatever it is. Dude, you’re an ass, libertarian or not. And again, you’ve missed the issue and holding of the case, and I’m done with it. Voluntary, intrastate commerce…repeat it… then you get it

                3. And you know what, History, if you check back in? You’re right. I didn’t see the indentation in your comment, and you’re responding to something that’s incorrect. And I need to man up and apologize. I thought your comment was a stand-alone comment, not a response to another, and now I see exactly what you’re talking about. I have a larger monitor I’m looking at. My bad, and apologies for the argument and castigations.

                  1. One last time for clarification: you’re correct, but it wasn’t me that claimed compulsion, it was the first commenter, R C Dean. I do understand Wickard. I apparently do not understand indentations and replies. No, there was no compulsion, and I knew that. I didn’t know you were correcting him, which was…well…correct to do.

          2. And here’s a canned brief for your edification. Note the main issues and holding.


  5. Wickard v. Filburn (1942) and Gonzales v. Raich (2005)

    Die, die, die.

    Just die already.

  6. “Are you serious? Are you serious?”

  7. That doesn’t seem to fly. Wickard and Raich were involved in a “self-directed affirmative step” alright, a self-directed affirmative step to not participate in a market by supplying the good themselves. The only way that is different than not buying health insurance is that they did some things in order to not participate.

    1. “Doing some things” and “continuing to breath” are, of course, the same conditional.

      Got it.

      1. No, but one could argue that insurance is in the business of paying for people’s healthcare. If you pay for your own healthcare, you’re self-insuring, so the only way to stay out of the healthcare-payment market would be to opt out of receiving any healthcare at all; however, since you will be provided healthcare without consent in the case of emergencies, you cannot plausibly do so, so all people are automatically assumed to be involved in healthcare-payment commerce whether insured or not.

  8. One big problem I find with the gubmints argument that not having insurance will place a burden on society as a whole is, what if you’re a billionaire and just pay cash at time of purchase for your health care?

    1. That same argument they are making could also compel a Christian Scientist to get treatment against his / her will.

    2. I don’t know if this is still the case in California, but it used to be that it wasn’t absolutely necessary to buy auto insurance in order to get your car registered–you could put up a bond instead, but the amount of money you had to put up was much higher than the amount you had to carry for minimum liability.

      I’m all for attacking problems with multiple strategies simultaneously, but I don’t think I’ve ever seen a law in a common law system that couldn’t be stretched or reinterpreted to fit whatever size was necessary…

      Given enough time and effort, they’ll find a way to make this legal–these legal speed bumps are helpful. They give us impetus and more time to come up with political solutions. …but ultimately, the solution to ObamaCare really is political–not legal.

      So, if they put an exemption out there for people who can afford to put up a bond, does that make the mandate okay?

      I suspect it might. …and the real world implications of that would probably be just like if the mandate were perfectly okay. Just like it is with the drivers’ insurance mandate in California.

      If you don’t have the funds to legally evade the mandate, that doesn’t mean you didn’t have the freedom to do so. I have to freedom to buy Bill Gates’ house if he’s willing to sell it to me–whether I have the financial wherewithal to do so is completely beside the point.

  9. I guess they can’t just call it what it is, a tax, and be done with it.

    Why bother when you can also elevate the commerce clause to the ultimate, untoppable government jinx

  10. This opinion appears to be airtight, bullet-proof, logical, and direct. If the Supreme Court doesn’t uphold it 9-0, something’s wrong.

    1. You’re a funny guy, CE. It will be a 5-4 decision, one way or the other, with conservatives going against the mandate, liberals going for, and wildcards being a toss-up. And severability is anyone’s guess.

  11. Isn’t it the case that judges are legally bound to uphold previous higuher court decisions?

    The judge couldn’t simnply overturn Wickard, even if he thought it was bullshit. It was a Supreme Court ruling and he had to follow it.

    His only option was to find a disctinction between Wickard and the PPACA. Otherwise, Virginia would just have to appeal to a higher court, and eventually get the US Supreme Court to overturn Wickard.

    1. Eh. They could demonstrate that the previous precedent was so ripe for abuse or arbitrary in practice it could not be constitutionally implemented (I’m thinking Brown v. Board of Education and the “separate but equal” precedent for segregation).

    2. “Isn’t it the case that judges are legally bound to uphold previous higuher court decisions?”

      Isn’t it the case that government is legally bound not to violate the constitution? More pertinent question — if he did go against precedent, what could be done about it?

    3. Yes, the judge is legally bound to uphold the direct authority of the Supreme Court.

      What the judge did here was exactly what you stated, he found a distinction between Wickard and today’s case. Wickard was not overturned, or even questioned, with today’s decision.

      1. Right, if Wickard is going to be overturned, the Supreme Court would have to do it, because it was a Supreme Court ruling. A lower court cannot overturn a ruling by a higher court.

  12. The problem here isn’t just the commerce clause. The problem is, even if the mandate is unconstitutional under commerce clause analysis, it can still pass muster under the necessary and proper clause, and Hudson didn’t really convincingly address this.

  13. As noted, the underlying problem is the vast extension of federal power based upon the Supreme Court’s vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See

  14. Timely Renewed, If I understand what you are saying, I think I agree with you. Either Wickard, Raich, and other related, heinous rulings must be reversed by the court, or the matter must be taken out of their hands by the passage of a Constitutional Amendment that clarifies and strictly limits the Commerce Clause.

    There is NO WAY that its authors intended the Commerce Clause to cover cases where someone pursues self-sufficiency (a form of “happiness”) by REFRAINING from commerce. What Wickard accomplished, and Raich confirmed, was the Federal government’s assumption of authority to tell people whether and how they could be self-sufficient, up to and including the REQUIREMENT of (inter-)dependency. Whatever happened to the right to be left alone? That is what Wickard and Raich are really all about: the elimination of THAT right, and it is primarily for that reason that those two rulings must either be reversed or made irrelevant.

  15. Fah, what does it matter? The old decisions are still utter lies that have no basis in any understanding of the Constitution. I’m glad to be spared this one small attack on my freedom, but the fact remains that this decision is just mental gymnastics done to find some excuse to not uphold the old decisions, not an actual, straight-up Constitutional decision.

  16. It is wierd to me that we have no problem with the government making us carry insurance for our vehicles but a major problem with the government making us care it for our own bodies our health is what will eventually bankrupt this country not car accidents

    1. Really? lol… what else should we be made to do for our own good? Maybe a government screen that wakes you up for morning calisthenics?

      Universal health care is another tool for the state to meddle in your life.

      Watch your weight for the good of the state, don’t smoke and choke the state.

    2. You must have a very limited understanding of insurance, governments and liability then…

      The Federal government does not issue car insurance mandates. The states do. Next, you are not required to carry comprehensive insurance, you are required to carry liability insurance.* This is a prerequisite to driving on the public roads – just in case you happen to harm someone with your 1.5 ton missile.

      If “bankrupting this country” is a compelling case, the constitution offers a remedy – amendment. As an alternative to providing healthcare to all at the federal level I submit that a constitutionally valid remedy to the “bankrupting the country” problem is “don’t provide healthcare at the federal level”.

      A perfectly valid use of the commerce regulating powers of the federal government would be to end the balkanization of healthcare by state laws (currently you cannot buy healthcare plans across state lines). This would potentially allow a regulatory scheme that encourages competition and changes the status quo in terms of price transparancy which might address spiraling costs. Since the intent of the commerce clause was to prevent barriers to trade between states, one could easily argue that the current regulatory environment is already in violation of the US constitution (reserving the right to restrict interstate trade to the federal government).

      *some states have interesting twists for expediency – so called “no fault” insurance, which is sort of a hybrid.

    3. our health is what will eventually bankrupt this country not car accidents

      It’s not as if legislation can make us healthier or wealthier.

  17. “In Wickard the Court said a farmer who grew wheat for his own consumption could be fined for exceeding federal crop quotas, even though the grain never left his farm, because such self-sufficiency, taken in the aggregate, has a substantial effect on the interstate market in wheat.”

    I have often thought how perilous the continuation of our rights are when depending on the decisions of a bunch of robed monkeys. This confirms it beyond my worst fears. Not to mention the gang *ss raping of logic.

    1. Well, then definitely don’t go read about Gonzales v. Raich. Because if your wildest fears only went to wheat (which exists in a legal interstate market), hooo boy, are you in for a surprise..

  18. The Republicans are the ultimate hypocrites!

    How do we pay for health care reform ?

    ** How do you pay for tax cuts for the wealthy ?

    1. First attempt : threatening Social Security and Medicare Cut through the deficit panel.

    2. Second attempt : holding the desperate Hostage, say, by the Ransom.

    ** Inaction cost, $9trillion over the next decade, ((Some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion–60 times greater than the gross cost of the $700 billion TARP financial bailout)).

    Over the duration of healthcare debate, using the preliminary cost analysis of CBO, the reps opposed the public option stubbornly, but after the release of final score, they have been defiant on the referee.

    The nonpartisan Congressional Budget Office estimates that :
    Inaction cost in relation to health care reform totals $9trillion over the next decade.
    Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade.

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