It’s the opening salvo in the legal battles over the “individual mandate” in the new federal healthcare reform law. Virginia filed suit alleging the mandate was an unconstitutional exercise of Congressional power. The feds moved to dismiss the lawsuit. A federal judge denied the motion to dismiss and said the lawsuit can proceed. The spin from the White House is that this is just a procedural ruling (which, of course, it is) and they are confident that they will eventually succeed. Since the individual mandate is the engine that makes this newly imposed socialized medicine scheme viable, the White House better be right or the call for repeal might come from both sides of the aisle.

Anyway, because of the past criticism of those of us who think the Commerce Clause does not extend as far as this individual mandate goes, I’d like to highlight some of the judge’s language in his order, as quoted in this Politico article:

“Unquestionably, this regulation radically changes the landscape of health insurance coverage in America,” Hudson wrote in a 32-page decision filed Monday morning. “Never before has the Commerce Clause … been extended this far.”

Hudson said there was no clear legal precedent allowing the federal government to impose such a rule, even under Congress’s power to require individuals to pay taxes. However, he also conceded there was no clear precedent to the contrary.

“Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue,” Hudson wrote. “No reported case from any federal appellate court has extended the Commerce Clause or the Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

While the judge’s order doesn’t allow me to take a victory lap on the main issue of the mandate’s constitutionality, it at least allows me to lace up my sneakers.

Someone who’s seen the briefs in this case and the Florida case and this judge’s recent order is going to have to explain to me the federal government’s overall defense of the individual mandate at this stage in all litigation over the individual mandate.  I thought the administration had recently abandoned the Commerce Clause argument in the Florida challenge to the individual mandate in favor of the Taxing Power clause. My guess now is that the feds are alleging various potential sources of constitutional authority in order to see what sticks, and that my previous characterization that they “abandoned” the Commerce Clause argument was overstated. If so, I apologize for the mis-statement.

Print