December 13, 2010

Reading the Virginia decision on the constitutionality of Obamacare

By Reading the Virginia decision on the constitutionality of Obamacare

Author: Timothy Sandefur

Judge Henry Hudson issued a decision only minutes ago holding that the Obama Administration’s health care law is unconstitutional, because it exceeds Congress’ constitutional authority. You can read that decision here. It reaches three conclusions about constitutionality: first, the law is not within Congress’ power to regulate commerce; second, it is outside Congress’ power to tax, and third, that the law violates the state’s authority to implement its own laws, and particularly the Virginia statute that bars citizens from being forced to purchase health care coverage.

The commerce clause argument is, of course, the one that’s received the most attention. First, the court rejected the federal government’s argument that not deciding to buy health insurance is “economic activity” which the government can regulate. The Obama Administration argued that “it is inevitable” that “every individual—today or in the future—healthy or otherwise—will require medical care,” and thus the decision not to buy insurance is not inactivity, but the sort of activity that the government can regulate. The court did not agree:

Of course, the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence…. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market…. Because an individual’s personal decision to purchase—or decline to purchase—health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary.

This decision makes clear that Congress does not have power to regulate whatever it wants under the commerce clause, or to force people to engage in commerce who otherwise would not choose to do so. The Obama Administration’s arguments would, if accepted, give Congress absolute power to force Americans to join a gym to improve their health, or buy cars from government-owned General Motors to “stimulate the economy,” or do anything else that has any economic consequences—which, of course, means anything. Judge Hudson rightly recognizes that the argument made by the Obama Administration in this case would completely undo the Constitution’s crucial limits on federal power.

We will have more as the day progresses.

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