The Healthcare Law Under the Judicial Knife: Some Early Reactions

The Wall Street Journal | December 13 – The reactions to Judge Henry Hudson’s ruling striking down a key portion of the health-care law are coming in fast and furious. (Click here for our earlier post on the ruling; here for

A smattering from around the blogosphere and our own reporting:

Constitutional scholar Ilya Shapiro, writing at the Cato Institute’s Liberty blog:

Yes, Virginia, there are limits on federal power. Today is a good day for liberty. And a bad day for those who say that Congress is the arbiter of Congress’s powers. By striking down the individual mandate, Judge Hudson vindicated the idea that ours is a government of delegated and enumerated—and thus limited—powers.

Washington & Lee University health-law expert Timothy Jost:

Judge Hudson has effectively rewritten the Commerce Clause, which nowhere contains the word “activity.”  In the other major Commerce Clause cases of the 20thcentury . . . the party challenging the statute claimed to be outside of the stream of commerce, but the Supreme Court held that the party nevertheless had an effect on interstate commerce.  The decision not to insure is not “inactivity,” as Judges Moon and Steeh have already held. It is a decision that results in the transfer of billions of dollars in costs annually. It is commerce, and Congress can regulate it.

Jordan Sekulow, Director of Policy at the American Center for Law & Justice:

Judge Henry Hudson’s decision is a victory for the majority of Americans who are opposed to government-run health care. This is a momentum-changer that will further tarnish the Obama administration as it faces serious legal challenges to the President’s most noteworthy legislative accomplishment, which now faces a 112th Congress filled with Republicans who have pledged to repeal the unpopular health care reforms.

Elizabeth Wydra, Chief Counsel for the Constitutional Accountability Center:

Judge Hudson’s ruling today is a constitutional outlier that will not stand on appeal. . . . In particular, the requirement that individuals maintain a minimum level of health insurance coverage or pay a tax penalty falls squarely within Congress’s constitutional authority to regulate interstate commerce, including actions—such as the decision not to buy health insurance—that substantially affect interstate commerce.”

Hans Bader, lawyer at the Competitive Enterprise Institute:

This so-called “individual mandate” is unprecedented and exceeds Congress’s power under the Commerce Clause of the Constitution.  As the Congressional Budget Office noted in 1994, “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Erwin Chemerinsky, constitutional law expert, dean at the University of California, Irvine Law School:

The district court judge’s ruling conflicts with that of other courts [and is] inconsistent with Supreme Court decisions concerning the commerce clause. Under Supreme Court precedents, Congress can regulate economic activity which taken cumulatively has a substantial effect on interstate commerce. Health insurance is a trillion dollar industry. The last Supreme Court decision about the commerce clause – Gonzales v. Raich – held that Congress can criminally punish cultivation and possession of small amounts of marijuana for personal use. If Congress can do this under the commerce power, surely it can regulate a trillion dollar industry including by requiring individuals to have health insurance.

Randy Barnett, constitutional law expert, law professor at Georgetown University:

This is a big deal.  We finally have a formal ruling that the mandate is unconstitutional.  Had it gone the other way, the administration would have crowed that every judge has dismissed the challenge, which would show the challenges to be frivolous.  No one can claim that now.

Tom Dutton, head of health care practice at Jones Day:

The judge’s opinion is well reasoned.  There is a strong likelihood that this decision will ultimately be upheld by the US Supreme Court. . . . If the individual mandate is indeed unconstitutional, then hopefully an appellate court will hold the entire law unconstitutional (as the Virginia Attorney General requested) because the individual mandate is the economic lynch-pin to the law.


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