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Federal Judge to ObamaCare Defenders: Nope!

Posted on December 13 2010 7:00 pm
Scott Spiegel blogs at He can be reached at

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On Monday a federal district court judge in Virginia ruled that the primary enforcement mechanism of ObamaCare, the Minimum Essential Coverage Provision—also known as the individual mandate—was unconstitutional. Though Judge Henry E. Hudson’s summary judgment did not rule on any other aspect of ObamaCare, and though the Obama Justice Department is already appealing the decision, this mechanism is the key to making ObamaCare work, as requiring the purchase of health insurance by virtually all U.S. citizens is the only way the rest of the bill can be paid for. This ruling provides ammunition to those opposed to the legislation who argued that requiring people to purchase a product against their will is unconstitutional.

Health and Human Services Secretary Kathleen Sebelius took two lines of defense against the Commonwealth of Virginia, which filed the suit via Attorney General Ken Cuccinelli. First, she argued that the purchase of health care insurance is an activity that affects interstate commerce, which the Constitution gives the federal government the power to regulate, per the Commerce Clause. She cited the cases of Wickard v. Filburn, which upheld the government’s ability to regulate farmers’ growing and consuming wheat on their own farms, and Gonzales v. Raich, which upheld the government’s ability do the same for marijuana, as evidence that the government can regulate private individual economic activity due to its potential effect on interstate commerce.

Hudson tore this argument apart by noting that, for starters, these two cases were widely recognized as being at the very outer limits of interpretation of the Commerce Clause, and that the individual mandate provision went even further than these cases. Hudson also pointed out a crucial difference between these two cases and the individual mandate. Namely, in Wickard and Gonzales, at least the federal government was only stepping in to regulate private economic decisions citizens had chosen to make, including purchasing a plot of land and growing wheat on it, and growing marijuana. The individual mandate would be the first case in history in which the government was regulating a non-decision or non-action—not purchasing health insurance—as interstate “economic activity” subject to regulation.

Second, Sebelius argued that, even if the individual mandate couldn’t be regulated under the Commerce Clause, the Constitution gives the federal government broad powers to tax citizens, and the penalty to be paid for noncompliance with the individual mandate could simply be considered a tax. Not so fast, wrote Justice Hudson. Taxes and penalties are different things, and just calling a penalty a tax for convenience’s sake doesn’t make it one.

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