That was fast. A federal judge in Virginia has declared the individual mandate in Obamacare to be unconstitutional for violating the Commerce Clause. Cue the violins: A federal judge rejected a key provision of the Obama administration's health care law as unconstitutional Monday, ruling the government cannot require people to buy insurance, in a dispute that both sides agree will ultimately be decided by the U.S. Supreme Court.
U.S. District Judge Henry E. Hudson is the first federal judge to strike down the law, which has been upheld by two other federal judges in Virginia and Michigan. Several other lawsuits have been dismissed and others are pending, including one filed by 20 other states in Florida.
The government had argued the Commerce Clause of the Constitution gives the government the power to require individuals to buy health insurance or face a penalty, a provision due to take effect in 2014.
But Hudson sided with Virginia Attorney General Kenneth Cuccinelli in saying the mandate overstepped the Constitution.
"This case, however, turns on atypical and uncharted applications of constitutional law interwoven with subtle political undercurrents," Hudson wrote. "The outcome of this case has significant public policy implications. And the final word will undoubtedly reside with a higher court."
There was no immediate comment from the White House.
No word from the White House and congressional Democrats, yet. Of course, there will be an appeal. But, I feel comfortable making a few other predictions as well.
I can guarantee that we are going to be hearing all about Judge Hudson now. If he ever owned pharmaceutical stock, we'll know by the time Wolf Blitzer is ready to start reading the news. If any of his relatives or, God forbid, his wife has worked in the medical field, we'll know. If he ever represented an insurance company while in private practice, we'll know. His inevitable Federalist Society membership will gain wide currency. At some point, Chuck Schumer, or some other worthy, will bellow something about Citizen United. I can say the same about Virginia Attorney General Cuccinelli, whose expense accounts are no doubt being prepared for leaking even as we speak.
What we won't hear: a substantive argument why the individual mandate is constitutional despite its never before being used in federal legislation before. No, it's going to all "Tea Parties" and "the embattled middle class" and "bending the cost curve" and so on. For all the claims that constitutional law is filled with inexplicable legal arcana, the fact is that the Commerce Clause is easy to understand: the feds can regulate economic activity that crosses state lines, but it's not enough to simply label something "economic activity" just because there is a market out there. (federal legislation banning guns from schools was overturned on this ground). The high school graduates who make up a majority of the public understand this by instinct, even as progressives and their wards try to distract people from profound constitutional questions with sob stories about people wearing their dead sister's dentures.
This is obviously something that can only be resolved by the US Supreme Court, which will probably have to overturn some of the New Deal-era court rulings (especially Wickard v Filburn, the Roe v Wade of Commerce Clause jurisprudence) that have provided the legal framework for much of the American welfare state. Stay tuned.
