Watch out, Elena Kagan.
Yesterday, U.S. District Court Judge Henry E. Hudson ruled that the Commonwealth of Virginia indeed has the standing to sue over ObamaCare’s individual mandate to purchase health insurance, which will go into effect in 2014. In addition, the Court ruled that the issues Virginia raised are certainly ripe for adjudication, despite the claims of the Obama Administration.
While this ruling is only preliminary, and does not answer questions of the constitutionality of the individual mandate, it does appear to bode well for opponents of the provision. Particularly, Judge Hudson noted that the power Congress has claimed — to force an individual to purchase anything — is unprecedented. According to the decision, “Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”
To boot, Judge Hudson wrote, “The congressional enactment under review—the Minimum Essential Coverage Provision—literally forges new ground and extends Commerce Clause powers beyond its current high watermark,” and lest there was any doubt, “Never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far.” Even at this early stage, based on the facts presented, the Court is already determining that the individual mandate to purchase health insurance is beyond anything that has ever been attempted under the Interstate Commerce Clause.
That either means that Barack Obama has stumbled into a never-before-invoked constitutional power to compel individuals as a matter of law to purchase something (doubtful), or in fact that the individual mandate goes far beyond anything that can be legally justified by the Constitution (likely). Either way, Judge Hudson’s preliminary ruling flies in the face of claims by the Obama Administration that “there is a pretty longstanding precedent on the constitutionality of this.”
Not so, says Judge Hudson. There is no guidance whatsoever in case precedence, a single example the federal government has furnished to show that this newly “rediscovered” power has ever been utilized by Congress.
At issue is a Virginia law protecting Virginians’ right to choose whether or not to purchase health insurance. According to the Virginia brief, the government takeover of health care “contains an individual mandate which will require a majority of Virginians after December 31, 2013 to purchase health insurance for themselves and their dependents subject to a civil penalty.” This contradicts Virginia law, which states that “No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage…”
The Obama Administration attempted to say the Virginia law was crafted merely to help provide standing to sue against the provision. Even if it had been, Judge Hudson wrote that the intention of the law was irrelevant to the fact that it had indeed been enacted by the Commonwealth of Virginia: “The mere existence of the lawfully-enacted statute is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.”
On ripeness, the Administration argued that Virginia’s brief was premature since the mandatory health care provisions do not go into effect until 2014, but, wrote the Judge, “that does not mean that its effect will not be felt by the Commonwealth in the near future.”
Judge Hudson continued, leaving no doubt that preparation were already well underway to comply with the federal provision, “This provision will compel scores of people who are not currently enrolled to evaluate and contract for insurance coverage. Individuals currently insured will be required to be sure that their present plans comply with this regulatory regimen. Insurance carriers will have to take steps in the near future to accommodate the influx of new enrollees to public and private insurance plans. Employers will need to determine if their current insurance satisfied the statutory requirements.” In other words, the individual mandate is already placing a considerable burden on individuals, businesses, and the states. So, the courts do not need to wait until 2014 to find out if all those efforts were in vain.
This case reminds the American people why judges matter, and should give cause to pay special attention to the confirmation votes of Elena Kagan in the Senate this week. She, when pressed by Senator Tom Coburn on hypothetical congressional mandate for individuals to eat three fruits and vegetables every day, leaned in favor of its constitutionality. She said that such a law was “dumb” and “senseless”, but that as a Justice she could not overturn it just because she thought it was so.
As a Supreme Court Justice, she will most likely have to rule on the merits of the individual mandate. How she views this critical question is important. The power being invoked by the Congress is unprecedented, as confirmed by Judge Hudson’s decision. And she would not even dismiss it out of hand as something Congress had never done before.
That would be important, after all, to know as a Judge, i.e. whether or not there was any precedent addressing the legal question. There is none, and either she did not know that, did not understand that there was any limit to the Commerce Clause, or did not care.
None of which qualifies her to the bench.
Robert Romano is the Senior Editor of Americans for Limited Government (ALG) News Bureau.
