• Huh?

    All you need to know about why the District Court decision in Virginia striking down the individual mandate is wrong is contained in this single sentence:

    If a person’s decision not to purchase health insurance at a particular time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such a provision under the Necessary and Proper clause is equally offensive to the Constitution.

    Judge Hudson doesn’t cite to any authority for this remarkable proposition, because there isn’t any.  The very idea of the Necessary and Proper Clause is that it permits Congress to do things that are not authorized under its enumerated powers if they are rationally related to doing things that are, so long as they are not prohibited by some other provision in the Constitution.  So it is simply fallacious to claim that if the individual mandate is not itself a valid exercise of the commerce power, it cannot be permitted under the Constitution because it is necessary and proper to something else that is.

    Because Judge Hudson collapses the Necessary and Proper Clause inquiry with the question of whether the individual mandate is itself a valid exercise of the commerce power, he does not even consider its relation to the guaranteed issue requirement of the ACA.  That requirement is clearly a valid exercise of the commerce power, and absent some other prohibition in the Constitution, the individual mandate is plainly necessary to its implementation.

    Instead, Judge Hudson concludes that the individual mandate is prohibited by the Commerce Clause because it is not permitted.  In so doing, he reads the Necessary and Proper clause right out of the Constitution.

    • Ian
      I know very little in this domain, so please assist if you would.

      As these cases are decided, appealed, and move up the ladder–knowing the judge and their pedigree is a strong determinant of how case will swing–how are judges picked?

      Is there a scenario in which Supremes would defer the case and leave decision in lower courts (say, if they were all unanimous). Or is it issue is so contentious, and crux is so unique (“inactivity”) that they want a bite of the apple regardless?


    • @Brad – The next stop in the Virginia case is the Fourth Circuit Court of Appeals. It is widely regarded as one of the more conservative circuits, but the three judge panel that will review the case will be picked at random and could be more or less conservative depending on the draw. The losing party before the panel can ask for rehearing by the whole court, that is, all the judges of the circuit. In the event that the government lost, I am sure they would dispense with the rehearing request and just seek review by the Supreme Court, which I expect would be granted. I think the challengers would likely seek rehearing if they lost because it is less certain that the Supreme Court would take the case if the law is found constitutional. The Supreme Court may choose not to hear any appeals if all the circuits go the same way in favor of the law. But I would still bet that they would take it anyway.

    • ” In so doing, he reads the Necessary and Proper clause right out of the Constitution.”

      As opposed to INTERPRETING it according to his personal point of view laden with a multitude of bias, possible personal tragedies and beliefs…

    • So, here is my question. What gives you or anyone else the right to force me to purchase a service for myself or my neighbor at the point of a gun? If I have to purchase health insurance I cannot afford college tuition, if I have to pay a fine for not purchasing a service I do not want I cannot afford tuition. You or anyone else including the federal government do not have the right to force this service on me and ef’ over my life.