August 3 2010
Judge: Yes, Virginia, It's Unconstitutional
All the smart people know, the Wall Street Journal notes, that healthcare reform is constitutional-the pundits, the legal class, and the politicians. But the Journal says this is a faux consensus, shattered by yesterday's ruling by U. S. District Judge of the Eastern District of Virginia Henry Hudson's ruling in the matter.
Judge Hudson rejected the administration's motion to dismiss the case and now debates about the law's constitutionality will proceed. In his ruling, Hudson indicated what is at stake:
The strongest constitutional case against ObamaCare turns on the individual mandate, the requirement that everyone buy health insurance or else pay a penalty. Judge Hudson notes that ObamaCare "literally forges new ground and extends Commerce Clause powers beyond its current high watermark." The core question is "whether or not Congress has the power to regulate-and tax-a citizen's decision not to participate in interstate commerce," as Judge Hudson rightly notes.
Remember when we were told that purchase requirement wasn't a tax? Well, now, as the Journal points out:
We have been instructed that the individual mandate is constitutional under the Commerce Clause, full stop. If so, why did the Justice Department think it necessary to fortify this argument with a new theory that the mandate is also sanctioned by the taxing power? During the health-care debate, Democrats vociferously denied that the penalty was a tax at all, including the President himself, who said in an ABC interview last September that "I absolutely reject that notion." At any rate, Judge Hudson also points out that this power is "not without limitation" either.
This is hopeful news for challengers of the administration's health care reform. I hate to say this, but here goes: Can we depend on the next judge who hears the case-and this is definitely a case that's going places (like to the Supreme Court)-to buck "enlightened" opinion? The Journal editorialists share my concern:
The White House actually put out a statement on the decision analogizing opposition to ObamaCare to opposition to the Civil Rights Act. The point of this exercise is to intimidate and demonize Virginia Attorney General Ken Cuccinelli and the other states that have sued, rather than addressing the substance of their claims. And little wonder, after reading Judge Henry Hudson's opinion.