Reading through Judge Hudson’s ruling declaring the individual mandate to buy health insurance unconstitutional, the thing that strikes me most about the opinion is how devoid it is of actual argument. The key section occurs on page 24 of the opinion, where Judge Hudson states:
(cross posted on my blog buddhistwonk.tumblr.com)
First, to survive a Constitutional challenge the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. Every application of the Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity.
If you read that sentence quickly, you might think that the Court is saying that the Supreme Court has found applications of the Commerce Clause power that do not involve activity to be unconstitutional. If there were a case that said that, you would also think that the Virginia court would cite it as an authority. But of course the truth is that the Supreme Court has also never struck a law down on the grounds that it did not involve some form of action, transaction or deed placed in motion by an individual or legal entity. Nor has the Supreme Court ever clearly declared that a willfull action by an individual or legal entity is a necessary precondition of a law being Constitutional. In fact, Commerce Clause analysis almost always focuses on the other issue, namely whether there is a substantial impact on interstate commerce.
So, fine: lets say we agree with the Court that this is an issue of first impression without clear precedent in either direction. Why, then, is a rule that says that willfull activity is a necessary precondition for the application of the Commerce Clause superior to a rule that says that economic inactivity that has a substantial impact on interstate commerce is beyond the reach of the Federal government? Here the Court’s analysis is pathetically thin. The closest the Court comes to a serious argument in favor of its position is this section:
[T]he Secretary argues requiring advance purchase of insurance based on a future contingency is an activity that will inevitably impact interstate commerce. Of course, the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.
It’s not clear exactly what the Court means by this. Is the Court suggesting that transportation inactivity (e.g. remaining where you are, or perhaps not buying a car) inevitably impacts interstate commerce the same way that not purchasing health insurance will inevitably impact interstate commerce? That argument seems extremely thin, given the critical role that the individual mandate plays in being able to effectively regulate the national health care system.
But that’s it - a vague assertion that the Secretary’s position would leave no meaningful limits on Commerce Clause jurisprudence, which is left undeveloped and without further justification. The subtext of the argument is clear. Judge Hudson has decided that the current Commerce Clause analysis extends the regulatory powers of the federal government as far as those powers should go, and if the Secretary cannot fit the Insurance Mandate into those precedents, then they are unconstitutional. He sets the problem up as requiring de novo review, but then refuses to do any real de novo analysis.
It is important to recognize that the Commerce Clause is not a right bestowed on individuals meant to define the relationship between the citizen and the state like the free exercise clause or the equal protection clause. The purpose of the Commerce Clause to define the appropriate relationship between state and federal government authority. The essence of Commerce Clause jurisprudence is that in order to have a federal government that can effectively regulate the functioning of the economy, it needs to have the power to regulate things that substantially affect interstate commerce. The question of whether an individual has freely chosen to participate in an action, or whether he was coerced by a tax penalty or regulatory enforcement, doesn’t have any meaningful bearing on the question of how we divide the authority to regulate the governments between the state and federal governments.