Wednesday, December 15, 2010


Notwithstanding the dramatic headlines in the New York Times and elsewhere, no-one should have been surprised by Federal Judge Henry Hudson’s decision this week on the constitutionality of health care reform’s individual mandate.

Judge Hudson ruled against both of the Obama administration’s primary arguments: that the Commerce Clause of the Constitution allows the government to require the purchase of insurance as part of regulating an interstate commerce market, and that imposing a penalty for noncompliance with the mandate is within the government’s taxing authority.

Judge Hudson, described by the NYT as having “a long history in Republican politics in northern Virginia,” had provided enough clues during the hearing and in preliminary opinions that the Obama administration (and the media) must have been expecting the decision he handed down, at least in terms of support for or opposition to the mandate.

While Judge Hudson’s decision must have disappointed reform advocates, whether they expected it or not, it’s important to remember—as administration officials were quick to point out—that two other federal judges had previously issued opinions supporting the mandate. Meanwhile, at least one other federal case is pending, in Florida, with—as in Virginia—the judicial decision being handed down by a Republican appointee who has already expressed skepticism about the government’s arguments.

It’s clear, and without implying strictly partisan thinking to the judges involved, that judicial conservatives are going to find it much more difficult than their moderate or liberal counterparts to stretch the Commerce Clause to allow the mandate.

However, there’s obviously a long and bumpy road ahead for mandate opponents—and proponents—as suits continue to be filed and heard in federal district court, and then in federal appeals court. Lawyers for and against the mandate will be modifying their arguments to reflect the various judges’ opinions—and to try to demonstrate for the appeals courts how they may or may not be in error.

Supreme Court rulings have, over sixty years, stretched interpretation of the Commerce Clause to include decisions such as preventing farmers from growing wheat for their own consumption (since this would mean they didn’t have to buy it, thereby depressing retail prices), and allowing Congressional regulation of the growing of marijuana personal use (since it is a form of economic activity). Such rulings certainly suggest that a ruling in favor of the individual mandate wouldn’t be outlandish. On the other hand, the government may have to work very hard to persuade the present Supreme Court’s conservatives that the non-purchase of insurance by an individual has a measurable impact on the cost of insurance for others.

Finally, it’s important to emphasize that it may be as much as two years before the Supreme Court hears individual mandate arguments (assuming it chooses to hear the case at all) and that the Court’s make-up may have changed by then.

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