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Federal Judge: Health Care Law Individual Mandate Unconstitutional

A Federal Judge in Richmond, Virginia has handed the Obama Administration its first defeat in the various lawsuits that have been filed challenging the Constitutionality of the Affordable Care Act with a ruling declaring the requirement that all Americans purchase health insurance to be beyond Congressional authority under the Constitution:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits filed against the health care law. The others — in Detroit and Lynchburg, Va. — have upheld the law. Lawyers on both sides said the appellate process could last another two years before the Supreme Court settles the dispute.

In this particular case, the next step on the appellate ladder would be the Court of Appeals for the Fourth Circuit, which has generally had a reputation of being among the more conservative Courts of Appeal.  However, Virginia’s Attorney General has reportedly been mulling the idea of  applying to the Supreme Court to leave to bypass the  Court of Appeals and proceed directly to the final state of the appellate process. Even if such an application were made, there’s no guarantee it would be granted so the the case may end up in the 4th Circuit anyway, but this strikes me as mistake. It seems to me that a final hearing before the Supreme Court might have a better shot, for Virginia, if it had other rulings against the law from other Courts behind it.

In any event, it’s clear that the Federal Government was unable to overcome much of the initial skepticism that Judge Hudson expressed about the arguments in favor of the mandate in his ruling on the government’s Motion to Dismiss. On the Commerce Clause, Hudson ruled that the requirement that American citizens purchase health insurance or face a penalty to exceed even the relatively liberal bounds of Congressional authority as set forth in case likes Wickard v. Filburn and Gonzalez v. Raich and that failure to act cannot itself be considered an act occurring within interstate commerce. On the government’s backup argument that the mandate and it’s penalty are justified under Congress’s far broader authority to tax for the “general welfare,” Hudson essentially ruled that the taxing power cannot be used to accomplish a purpose not authorized under the specific grants of power given to Congress under Article I, Section 8, and that the Attorney General’s argument is undercut by the fact that both Congress and the President specifically denied during the build up to passage of the Affordable Care Act that the mandate was a tax (a relevant fact because it goes to the question of Congressional intent).

Finally, rather than declaring the entire ACA unconstitutional, Hudson’s decision merely enjoins enforcement of the individual mandate. However, given the fact that mandate is the centerpiece of the entire regulatory scheme, it is hard to see how the rest of the law could survive without it.

This case is obviously going to be appealed, but it’s nonetheless a victory for Virginia, and it’s noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.

Here’s the full text of the opinion:

Commonwealth of Virginia v. Sibelius et al

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Brett says:

    It sickens me to see that scumbag Ken Cuccinelli – he of “harassing climate scientists with lawsuits while targeting legal protection for homosexuals” fame – actually get a victory on something. Particularly since he’s also trying to get the whole law thrown out with the mandate, which will, among other things, cost me my health insurance.

    In any case, I’m not optimistic about the mandate’s chances of survival in the Supreme Court. The four conservative justices will almost certainly vote against it, and the vote-swinger will likely as well.

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  2. This one ain’t over by a long shot, so look for this to be a political football in the next election cycle.

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  3. Zelsdorf Ragshaft III says:

    Brett, did you notice the all time low temperature in Cancun? I always though warming meant getting warmer. Notice too, it is still fall. I just love the term climate scientist. Just what is it scientifically, they can do? Seems if they cook the books they can produce he results they seek.
    Brett, Brett, the democrats attempted to turn a commodity into a right. They will fail. You have not right to services someone else must perform. Sorry. Why, Brett does sexual preference deserve legal recognition? If so, why? Since you can choose not to act on your preference. I prefer blonds yet redheads are just as good, when push comes to shove. Lastly Brett, would that legal protection for those who choose a certain way extend to those who choose outside of their specie? If not, why not?

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  4. Ben says:

    If this is affirmed by the Supreme Court, then the rest of the bill will be dead too. Without the individual mandate, then insurance companies HAVE to be allowed to deny coverage for pre-existing conditions. Otherwise, the whole industry will be out of business. The only way to get coverage for everyone then will be single-payer.

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  5. sam says:

    It was found constitutional by a federal district court in Michigan, see, Thomas More Law Center, et al v. Obama

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  6. Brett says:

    If this is affirmed by the Supreme Court, then the rest of the bill will be dead too.

    Not necessarily. It depends on whether or not a judge rules that the rest of the bill is “severable” from the individual mandate/no pre-existing conditions rule. If it is, then we’ll just end up with a mess of individual fixes to various aspects of the problem, and no systemic-level reform.

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  7. Vast Variety says:

    Zelsdorf: “I always though warming meant getting warmer.”

    You see, that is mistake 1. Global warming does not necessarily mean it will get warmer everywhere on the planet. It means that the planet’s climate is changing at a rate that is outside of the norm based on historical trends of the last few hundred thousand years. Your second mistake is confusing short term local weather for long term global climate patterns. It is a known fact that carbon dioxide in the atmosphere traps heat in a greenhouse effect. It is also a known fact that the human race pumps out far more carbon dioxide than the rest of the planet would if humans were not here. Regardless if your views on Global Warming, it simply makes sense that we should find ways to cut back how much of a toxic gas we pump into our atmosphere.

    Now, back to the topic at hand, while I’m certainly in favor of the ruling against the mandate, I’ll be happily surprised if it survives the Supreme Court. I also wonder if state based auto insurance mandates could be challenged using the same method.

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  8. Tano says:

    Yes, the score is now 2-1, in favor of the law, in thhe matter of District Court rulings. Of course it really doesn’t matter which way the District courts rule, or even how the Appeals court rule. Either way the rulings get appealed, so it will come down to the SC in any case. In a couple of years.

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  9. Tano says:

    “If this is affirmed by the Supreme Court, then the rest of the bill will be dead too. ”

    This is almost certainly false. There is a lot in the bill besides the mandate, and the preexisting exclusions. The insurance pools will remain, the Medicaid expansion will remain. the subsidies for purchasing insurance would remain, plus other stuff….

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  10. EJ says:

    ” Regardless if your views on Global Warming, it simply makes sense that we should find ways to cut back how much of a toxic gas we pump into our atmosphere.”

    Carbon dioxide isnt toxic outside of the warming effects. If the warming effect is not signifigant, then no there is NOT a reason to cut back on CO2 output.

    And yes it is true that it is scientific fact that CO2 is a greenhouse gas. But its a very weak one. The theory behind why it createates mosst of the warming effect is not the CO2 itself, but rather a feedback loop with increased levels of water vapor which then traps in the heat. But water vapor also creats clouds, which reflect light back into space. Add in hundreds of other negative and posative feedback loops, and no one really knows how much warming a given amount of CO2 creates – because its an insanely complicated system. Its like trying to forecast economic growth.

    And thats the real debate. If warming is minimal, and the cost of mitigating warming is high, then it may make sence to not try to reduce emissions. Its entirely a cost-benifit analysis. Simply saying “carbon creates warming” does not logically lead to “cut emissions.”

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  11. john personna says:

    I didn’t see that coming.

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  12. floyd says:

    brett;
    Not that it matters here, but I heard on the radio about an hour ago that the judge in this case ruled it “inseverable”. I think it was NPR but that was only one of the stations which were on during my drive, so I’m not sure.

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  13. EJ says:

    “I also wonder if state based auto insurance mandates could be challenged using the same method.”

    Those are state laws and states have “general policing power” subject to restrictions of their respective state constitutions. Commerce clause considerations do not come into play with auto insurance.

    Also, auto insurance is a condition of driving on a road, not a condition of breathing.

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  14. sam says:

    Orin Kerr thinks the ruling suffers from a significant and possibly fatal error (The Significant Error in Judge Hudson’s Opinion):

    I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:

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

    Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

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  15. Vast Variety says:

    “Carbon dioxide isnt toxic outside of the warming effects.”

    So you won’t have any trouble submitting to an experiential where you stick you in an air tight box and pump in CO2?

    “CO2 is an acidic oxide: an aqueous solution turns litmus from blue to pink. It is the anhydride of carbonic acid, an acid which is unstable in aqueous solution, from which it cannot be concentrated. In organisms carbonic acid production is catalysed by the enzyme, carbonic anhydrase.

    CO2 + H2O is in equilibrium with H2CO3

    CO2 is toxic in higher concentrations: 1% (10,000 ppm) will make some people feel drowsy. Concentrations of 7% to 10% cause dizziness, headache, visual and hearing dysfunction, and unconsciousness within a few minutes to an hour.”

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  16. Trumwill says:

    Ideally, from a policy standpoint, I would like to see PPACA struck down. But that preference (a somewhat moderate one) pales in comparison to the horror of the Mandate getting struck down but the law being declared severable. From a Constitutionality standpoint, I am inclined to believe that the Mandate is constitutional under the taxing authority. On the other hand, I am not entirely unsympathetic to the claim that it should not be considered a tax because the law’s pushers said it was not a tax. And if it’s not a tax, then it’s outside of what I know and I have read some convincing arguments on both sides.

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  17. EJ says:

    Vast,

    Stop the straw man. Within the range that we are talking about re: global warming, carbon dioxide is NOT a toxin. Currently the atmosphere is 0.039% carbon dioxide. It would need to rise 26 fold in order to get to the minimal levels you are talking about and even with the most negative estimates of future carbon emissions, it only rises somewhere on the order or 2-4 times.

    If this is the only argument you want to make in reponse to what I said, you have nothing.

    Im tired of this question be argued by people on both sides who keep screaming at each other. Carbon dioxide is a greenhouse gas: FACT It is going to cost a lot of resources to try to slow emissions: FACT… why we cant have an adult conversation over the cost-benifit analysis is beyond me.

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  18. Vast Variety says:

    You can also take a look at the planet Venus to see what Carbon Dioxide can do on a global scale. The atmosphere there is more than 96% carbon Dioxide. It has a surface temperature of more than 800 degrees (which is hotter than the surface of Mercury), and it rains Sulfuric Acid.

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  19. Tano says:

    As to the fate of the rest of the bill – from Ezra Klein today – LINK

    “The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

    Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.”

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  20. Vast Variety says:

    EJ, if wait to do anything to cut emissions until there is actually a problem, like summer climate of Iowa becoming more like the summer climate of Mississippi and we can no longer grow the food crops we do, then its all ready too late. Its rather hard to put a dollar value on something like that. The decision to do something shouldn’t always be reduced down to weather or not it is cost effective in the short term.

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  21. Zelsdorf Ragshaft III says:

    Vast, did you notice the distance from the star to Venus as opposed to the star and Earth? Next, explain the Viking experience on Greenland, and last without CO2, what are you going to eat?
    Without the individual mandate, the healthcare reform (?) bill is toothless. All it does is remove money from Medicare.

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  22. EJ says:

    Vast, that Venus is hotter than Earlth has much more to do with the vastly higher atmospheric pressure than is does CO2. Remeber boyles gas law from basic chemistry/physics, PV=nRT

    As pressure, P, goes up, T, temperature goes up. Venus’s atmosphere is 93 times more dence than Earth’s and it is closer to the sun. Even if carbon ratio were the same as Earth, Venus would be much hotter. On the opposite end, Mars has a much higher ratio of carbon dioxide than Earth and yet is much cooler, because the atmosphere is far less dense. And to the extent that CO2 is the player, Earth concentrations are not going to get anywhere close to that of Venus.

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  23. EJ says:

    “The decision to do something shouldn’t always be reduced down to weather or not it is cost effective in the short term.”

    And im not saying the short term. Raising energy prices wills low economic growth and signifigantly increase global food prices. People will starve to death particuarly in the 3rd world if you try to limit carbon emissions. There is a real cost to this. This is why it is important to know the relative weights. If all we have to worry about is a minimal amount of warming, then it may not be worth it to try to stop. Humans have lived with global temperatures higher than they are today. Temperatures rising a max of 2 degrees is a much different calculus than temperatures rising a max of 8 degrees.

    And its not a linear cotinuation. There is a dimishing rate of increase as carbon increases. So all else being equal, there is a limit on how much warming carbon can indead raise temperature. Like i said earlier, the carbon itself has a very low limit. The theory relies on the posative water vapor feedback loop to do most of the damage. Understand all of the feedbackloops, negative an posative is therewhere where the question really lies.

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  24. Michael says:

    Sam, I believe he covered that by asserting that the “necessary and proper” clause only applies when the goal is covered by the enumerated powers. By saying that regulating the non-purchase of a service is outside of Congress’ enumerated powers, he nullified any argument that the law is “necessary and proper” to those ends.

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  25. Michael says:

    EJ: the prevailing theory is that Venus’ atmosphere was at one point about as dense as Earth’s, but the positive-feedback loop of greenhouse gases caused more and more gases to accumulate in it’s atmosphere, causing more and more warming.

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  26. Michael says:

    So you won’t have any trouble submitting to an experiential where you stick you in an air tight box and pump in CO2?

    In that case, it’s not the CO2 that would kill you, it’s the lack of O2. The same thing would happen if you pump the box full of H2O or N2.

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  27. Michael says:

    @ZR3: I once saw a rock travel upwards rather than downwards, obviously gravity is a sham. Either that, or you don’t understand what ‘global’ means.

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  28. Vast Variety says:

    “Vast, that Venus is hotter than Earlth has much more to do with the vastly higher atmospheric pressure than is does CO2. ”

    The density of the atmosphere of Venus is do in large part becuase of the amount of CO2 in its atmosphere.

    “Vast, did you notice the distance from the star to Venus as opposed to the star and Earth?”

    Did you notice that Venus is twice as hot as Mercury and Mercury is closer to the sun.

    “Raising energy prices wills low economic growth”

    Energy prices are going to continually rise no mater what we do as we use up the remaining oil reserves.

    “If all we have to worry about is a minimal amount of warming, then it may not be worth it to try to stop.”

    That minimal amount of warming is causing Arctic Sea to loose its summer Ice sheet. Until 2009 at the Arctic Ice Sheet made it nearly impossiable to sail through the Northwest passage most of the year. That is no longer true and Canada has all ready moved to claim much of those waters.

    Holes are forming in the Ice Sheet covering Greenland, and chunks of Ice have fallen off of the Antarctic Ice Sheet the size of small states. Greenland is loosing nearly 57 cubic miles of Ice every year. All that ice turning into water has to go somewhere.

    The country of Bangladesh is rapidly being submerged and it’s population will eventually have to go somewhere, like into India, which isn’t going to be too happy about that. The rise in Sea levels is all ready causing the Barrier Islands of North Carolina, which help shield it from Hurricanes, to disappear. In 2007 a summer storm flooded the subway system of New York City.

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  29. Zelsdorf Ragshaft III says:

    I know what global mean, as in global governance. Which is what the warmers are truely after. And I know was scam is as in “buy these green products” and AGW. Venus theory? Is there some part of the word theory you fail to understand? Theory is just that. Conjecture. Venus may have an atmosphere consisting mainly of CO2 but there are other planets whos atmosphere consists mostly of Methane which has a far greater greenhouse effect. Yet it is are colder than on Venus. I suspect it has something to do with the distance from the heat source. I know this, the temperature of Earth is far more dependent on Solar activity than it is on the very minor fluctuation in the content of our atmosphere.

    Michael just how far up did that rock travel, or did you leave out the part where gravity took its effect? Take your arguement to an area where the knowledge is. Go to Watts up with that. Win the arguement there.

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  30. Zelsdorf Ragshaft III says:

    Just how are you going to back up the statement the oceans are rising when at best they are a few inchs higher and will remain so in the foreseeable future. Just how long are you going to defend the lie that is AWG?

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  31. Drew says:

    Heh. Global warming dominating a health care law post. Who knew?

    Just in: No change in global mean temperatures in 15 years: also, top GW scientists admitting it was all about income and wealth re-distribution, not global warming.

    I’m shocked. Shocked!!

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  32. Michael says:

    Is there some part of the word theory you fail to understand? Theory is just that. Conjecture.

    Obviously I’m not the one having trouble with that definitions.

    I suspect it has something to do with the distance from the heat source.

    See the earlier comparison between the surface temperatures of Venus and Mercury.

    I know this, the temperature of Earth is far more dependent on Solar activity than it is on the very minor fluctuation in the content of our atmosphere.

    The difference being that we can control, to some extent, the content of our atmosphere. Controlling the solar output is, as yet, still beyond our technology.

    Michael just how far up did that rock travel, or did you leave out the part where gravity took its effect?

    Yes, I left out that part, just like how you left out the part about this summer’s record temperatures. Perhaps I was being too subtle? Next time I’ll just draw you a picture.

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  33. Zelsdorf Ragshaft III says:

    Obviously you have a limited understanding of the English language. Theory is shit that cannot be proven. An idea. I have a theory I would like for you to try out. Gather all of your green friends together along with some plastic bags with ties. Place the bags over each of your heads and tie around the neck for a seal. Voila! We have a partial solution to CO2 emissions and, and I say, a neat solution to many issues such as population control, unemployment, and traffic problems. Take your arguement to a place where you can be edified. How many scientist have to yell bull shit before you recognize you have been duped? As to Bangladesh, are you aware a good portion of the Netherlands is below sea level? You honestly think man had the power to control or influence climate? One volcano and all your plans are out the window. Stop playing with hocky sticks and phoney statistics.

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  34. Michael says:

    Obviously you have a limited understanding of the English language. Theory is shit that cannot be proven. An idea.

    Not in the context of science, no.

    How many scientist have to yell bull shit before you recognize you have been duped?

    I, for one, don’t base my beliefs on people yelling. All I need is one scientist showing empirical evidence that global warming isn’t possible.

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  35. sam says:

    Michael —

    “Sam, I believe he covered that by asserting that the “necessary and proper” clause only applies when the goal is covered by the enumerated powers. ”

    Orin disagrees. His argument is that Judge Hudson misunderstands the N&P clause:

    Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I.[my emphasis]

    Moreover, he says the judge’s ruling is contrary to the understanding of the N&P clause by all federal courts back to Chief Justice Marshall:

    [If you say] the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards.

    Note — and this is important — the Commerce Clause says nothing about the laws passed to regulate commerce, that is, it is silent on the means (laws) Congress can use regulate commerce. It only says:

    [Congress shall have the power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes

    I’m pretty sure SCOTUS will reject Judge Hudson’s understanding of the N&P clause.

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  36. Michael says:

    Orin disagrees. His argument is that Judge Hudson misunderstands the N&P clause

    I think you and Orin misunderstand Hudson’s reasoning.

    The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I.

    Hudson’s ruling was that the Commerce clause does not give Congress the power or responsibility to regulate the non-purchase of services. Since that is the only authority the government was using to support the law, he basically ruled that there is no power listed in Article I to which this law applies, and therefore it is not “necessary and proper” to achieve any of those ends.

    Note — and this is important — the Commerce Clause says nothing about the laws passed to regulate commerce, that is, it is silent on the means (laws) Congress can use regulate commerce.

    Again, Hudson ruled that the act of not purchasing insurance was not commerce. At that point, it doesn’t matter what laws Congress can pass to regulate commerce, it can’t pass laws (under the Commerce clause alone) that regulate something that is not commerce.

    I’m pretty sure SCOTUS will reject Judge Hudson’s understanding of the N&P clause.

    I’m not so sure, I guess time will tell though.

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  37. tom p says:

    “Hudson’s ruling was that the Commerce clause does not give Congress the power or responsibility to regulate the non-purchase of services. Since that is the only authority the government was using to support the law, he basically ruled that there is no power listed in Article I to which this law applies, ”

    Michael. I wou;d have a lot more sympathy with this oppinion if health care providers could refuse to provide care for those who could not pay for it….

    Freedom…. it is a bitch when the other guy gets it and I have to pay for it…

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  38. sam says:

    @Michael

    “Hudson’s ruling was that the Commerce clause does not give Congress the power or responsibility to regulate the non-purchase of services. Since that is the only authority the government was using to support the law, he basically ruled that there is no power listed in Article I to which this law applies, and therefore it is not “necessary and proper” to achieve any of those ends.”

    And Judge Steeth, in the opinion I cited above, ruled that it this ‘inactivity’ does impact commerce, and Congress does have the power to legislate in this area.

    Steeh found that “far from ‘inactivity,’ by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health-care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars . . . onto other market participants.” Therefore, Steeh ruled, regulating this decision falls well within the scope of Congress’s authority to regulate the health insurance market. [Source

    The mandate is directed at solving the freerider problem. But all this will all be hashed out in the Courts or Appeal, then SCOTUS. These lower courts rulings are pretty much theater.

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  39. Michael says:

    Michael. I wou;d have a lot more sympathy with this oppinion if health care providers could refuse to provide care for those who could not pay for it….

    Congress either has the power, or it doesn’t. Sympathy shouldn’t even factor into this.

    Freedom…. it is a bitch when the other guy gets it and I have to pay for it…

    Insurance isn’t a right, and has nothing at all to do with your freedom.

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  40. Michael says:

    And Judge Steeth, in the opinion I cited above, ruled that it this ‘inactivity’ does impact commerce, and Congress does have the power to legislate in this area.

    Which is, of course, the central question to this whole debate. That Hudson took a different view doesn’t mean he misunderstands the N&P clause, it simply means this is a gray area that will ultimately be decided by the SCOTUS.

    Steeh found that “far from ‘inactivity,’ by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health-care services later, out of pocket, rather than now through the purchase of insurance

    This, to me, makes assumptions of future actions that may or may not happen. Most people who forgo buying insurance don’t plan on paying for it later, they simply don’t plan on using medical services. Since there is no guarantee that people will ever have the need for medical services, there shouldn’t be an assumption that those who don’t pay now will end up paying eventually.

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  41. sam says:

    “That Hudson took a different view doesn’t mean he misunderstands the N&P clause”

    No, I think you’re wrong about that. They’re two separate issues, I believe, his understanding of the N&P clause and his holding the Congress cannot regulate “inactivity”. For a fuller discussion, you might want to head over the volokh.com and see Adler’s take, and Orin’s response.

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  42. floyd says:

    Michael;
    Wow! I don’t want to spoil a good thing, but we’ve sure found some acreage of common ground here!

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  43. Michael says:

    Yeah, lets try not to think about it too much, it makes me worry…

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  44. Tano says:

    “Obviously you have a limited understanding of the English language. Theory is shit that cannot be proven.”

    Actually Zels, you are wrong about this.”Shit that cannot be proven” is not part of science at all. I think you are referring to religion here. Maybe you were thinking of “hypothesis” – which is “shit’ that is yet to be proven (or disproven). In any case, “theory” is something very different than what you imagine, at least as the term is used in science.

    A theory is usually an established body of knowledge in some particular area – as in “the theory of gravity” or “quantum theory”, or “the theory of plate tectonics” or “the atomic theory”. These are the opposite of “shit that cannot be proven” – they are systems of ideas that have been proven and now are part of the accepted knowledge base.

    IT is possible to use the term “theory’ when you are in the midst of constructing the system – before it has been proven, but the ideas certainly need to be testable (provable) or they lose their status as theories, or anything else in science.

    “You honestly think man had the power to control or influence climate?”

    Why not? The mere existence of cities have considerable effects on the local climate. And you reference volcanoes? Think about it man – why do you think volcanoes can effect climate? Because they dump “shit” into the atmosphere that reacts in similar ways to what we are dumping into the atmosphere. You sound like someone from some previous century when our technologies were completely on small local scales. Why do you think that the levels of CO2 in the atmosphere have been going up? Where do you imagine that is coming from?

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  45. TG Chicago says:

    Mataconis said, “This case is [...] noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.”

    So you’re in favor of judicial activism?

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  46. Herb says:

    “So you’re in favor of judicial activism?”

    Who isn’t? Seriously….Complaints about “judicial activism” have always been transparently complaints about something else. Attacking an activist court is just easier than attacking your opponent’s logic.

    The logic here is that Congress can’t use the Commerce Clause to justify the individual mandate. We’ll see if that logic stands up, but considering that the “uninsured versus insured” issue does without question affect interstate commerce, I don’t see it winning the day.

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  47. sam says:

    Can we establish a rule, guys? If Doug,or James, or Steve — or whoever, posts on Topic A, and Zelsdorf the Dyslexic “comments” on B, C, and D that have nothing to do with Topic A, can we not let that dope hijack the thread? Can we just pass him by and say to ourselves, “Thank God that’s not me.”? Can we?

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  48. Fog says:

    “Since there is no guarantee that people will ever have the need for medical services…

    How many people are going to go through life, and death, without the need for medical services?

    … there shouldn’t be an assumption that those who don’t pay now will end up paying eventually.”

    Right.

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  49. Michael says:

    How many people are going to go through life, and death, without the need for medical services?

    People who either die suddenly, or who alternate forms of care.

    I should note that I support HCR, I even support the individual mandate, I just don’t necessarily thing that it was in Congress’ power.

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  50. Michael says:

    That should be “those who choose alternate forms of care”

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  51. [...] Steven Taylor noted in his post yesterday, Judge Henry Hudson’s ruling striking down the individual insurance mandate portion of the Affo… is far from the final word. For one thing, it is only one lawsuit among the two dozen or so that [...]

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  52. [...] comments here, and here. // [...]

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  53. Zelsdorf Ragshaft III says:

    Tano, a dictionary defines theory as “an assumption based on limited information or knowledge; a conjecture.”. Idid not get this info from he dictionary of Tano. Theories are unproven, and until they are and become facts, they are just conjecture. As to global warming. Please go read the lastest statements from NASA concerning the role of the Sun and climate.
    Here is a theory of mine. Democrats are closet communists. Not all but most. I can not prove it, but with people like Pelosi and Obama evidence is growing.
    The founders never ever intended for congress to have th authority to cause citizens to purchase a product or a service. Period. You want a change of government, just try to allow congress the power to force use to buy what we do not wish to. Can you spell revolution?

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  54. Michael says:

    Tano, a dictionary defines theory as “an assumption based on limited information or knowledge; a conjecture.”

    That’s one of several meanings a dictionary will define, the proper one will depend on context. In the context of science, the above definition is not correct. In the context of science, a theory is a detailed explanation of a known phenomena that conforms to all available observations and produces testable hypothesis.

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  55. Michael says:

    Theories are unproven, and until they are and become facts, they are just conjecture.

    That’s a common misunderstanding. Theories in science never become fact, nor do they ever become laws. Theories explain why facts and laws exist, they are not a stop along the way to becoming them.

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  56. matt says:

    Zelsdorf Ragshaft III doesn’t know what a hypothesis is or he’s willfully trying to manipulate the lesser informed…

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  57. [...] Judge Hudson’s decision Monday striking down the individual mandate on the grounds that the Constitution does not empower [...]

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