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.