"There is now a serious question as to whether the individual mandate will ultimately survive."
Writing in The New York Times, Brooklyn Law professor Jason Mazzone makes the case that Judge Hudson's ruling striking down the PPACA's individual mandate could foreshadow a similar ruling from the Supreme Court:
When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must be, on this federal power?
Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate "activity," as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress's power under the Constitution's interstate commerce clause have involved Congress regulating some kind of activity that is already occurring.
Indeed, the court has never confronted a federal statute that forces people to engage in some action like this. The conservative justices in particular will no doubt wonder what else Congress can make Americans do if it can make us buy health insurance. Can Congress tell us to join a gym because fit people have fewer chronic diseases? Can Congress direct us to purchase a new Chrysler to help Detroit get back on its feet?
…Judge Hudson's distinction also has allure because United States law in other ways already treats actions differently from inaction. Criminal law punishes things people do, not things they do not do. Tort law makes us liable for our actions that cause injury; outside of special relationships like that between a parent and a child, there is no duty to act. To drive a car, you must first purchase insurance, but you can choose to forgo auto insurance and use public transport instead.
The question he poses is the right one: If there are constitutional limits on Congressional power to regulate commerce, then how are those limits defined?
Mazzone concludes that "there is now a serious question as to whether the individual mandate will ultimately survive." I am not yet convinced that the most likely outcome is that the Supreme Court invalidates the mandate; in the end, it will probably come down to what Justice Kennedy decides. But with Hudson's ruling earlier this week, and with another federal judge now seemingly ready to issue a similar blow to the law, the odds do seem to be shifting against the mandate.
