For those keeping score at home, previously two federal district courts had upheld the healthcare reform law as constitutional. Today brought the first decision to strike down the bill’s mandate that everyone has to obtain health insurance.
Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia today granted a declaratory judgment to the Commonwealth of Virginia and its attorney general, Kenneth Cuccinelli, in its suit challenging the constitutionality of the healthcare reform bill President Obama signed into law earlier this year. One of two main issues in the case was whether refusing to purchase health insurance constitutes “economic activity” such that it could be regulated by Congress. Judge Hudson noted that previous attempts to regulate economic activity involved voluntary action by an individual or a group:
Quoting twice from Chief Justice Rehnquist’s opinion in U.S. v. Lopez that the Commerce Clause has “outer limits,” Judge Hudson agreed with most of Cuccinelli’s arguments. Hudson found that there was no authority under the Commerce Clause and/or the Necessary and Proper Clause to enact the individual mandate because it had not been used to regulate involuntary actions, and no previous authority that had sanctioned such a move by Congress:
After this passage, Hudson also writes:
After a review of previous case law and statutory interpretation arguments about whether or not the consequence of failing to obtain insurance under the law was a tax (the federal government’s argument, which would make it acceptable under Congress’ power to tax) or a penalty (Cuccinelli’s argument, which would make it not acceptable), Judge Hudson found that the consequence was a penalty, not a tax.
Having found against the federal government in all of its major arguments, Judge Hudson only severed the one section of the law that enacted the individual mandate, leaving the rest of it intact, under the theory that courts should be loath to rewrite statutes at all, but upon finding a constitutional problem, should only change as much as necessary.
Other nuggets:
- Judge Hudson characterizes Cuccinelli’s opinion of the federal government’s analysis of the tax/penalty question as “simplistic.”
- There are a few mentions of the long legislative struggle to get the bill passed. Judge Hudson acknowledged that, based on the record before him, it was hard to tell if Congress would have enacted the law without the individual mandate, in part because of “the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.”
- Judge Hudson cites to the other lawsuit brought by multiple state attorneys general this year to explain the logical connections that federal government used to argue for the individual mandate.
For some early reaction, Cuccinelli and other Virginia Republicans want to take any further action straight to the Supreme Court. Orin Kerr points out that Judge Hudson made an error regarding the scope of the Necessary and Proper Clause, saying it allows means that are not set out in the other enumerated powers of Congress. Adam Serwer thinks Judge Hudson gave Justice Scalia a way to square a projected desire to strike down the law with his writing in Gonzales v. Raich that some kinds of inactivity could be regulated (and the commenters chime in with the real-world reason that decision went the way it did). And Ezra Klein reminds everyone that two other federal district courts have found the healthcare reform law to be constitutionally sound (my take on one of those earlier decisions here).
Below is the full text of the decision.
