Virginia Redux

It has been amusing to see members of the same crowd who accused ACA proponents of contortionism in characterizing the individual mandate as a regulation of economic activity doing backflips of their own trying to defend Judge Hudson’s obvious botch analyzing the individual mandate’s constitutionality under the Necessary and Proper Clause.

Kurt Lash argues (as best I can follow) that Judge Hudson does address whether the individual mandate is “proper” by finding an implied Constitutional prohibition against assertions of power that have “no logical limit.”  But this is just to say that Judge Hudson has found a “slippery slope” clause in the Constitution where it doesn’t exist.

What does this argument boil down to?  Steven Lubet nails it (via Andrew Koppelman at Balkinization – the whole post is a must read):

My Northwestern Law colleague Steven Lubet has offered in an email an elegant summary of the constitutional claim against the federal health insurance mandate: “The scholarly argument against the mandate pretty much runs this way: (1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” This seems to be the source of the novel idea that Congress can regulate activity, but not inactivity, under the necessary and proper clause.

It’s not much of an argument, and a strange one to hear from the sort of people who ordinarily like to complain about activist judges writing their views into the Constitution.

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