Not unexpectedly, Judge Henry Hudson of the federal district court in Richmond has ruled in Virginia v. Sebelius that ObamaCare’s “individual mandate” to purchase health insurance is unconstitutional, holding that the argument for the provision “lacks logical limitation and is unsupported by Commerce Clause jurisprudence.” He added that it could not be upheld as a valid exercise of the taxing power either, noting the unseemly scramble to manufacture this alternative argument at the last minute, after ObamaCare’s proponents had assured everyone the provision was not a tax but a regulation of commerce.
Two months ago, in Thomas More Law Center v. Obama, Judge George Steeh of Michigan upheld the very same provision, saying that persons who choose not to buy health insurance are not “outside the market” Congress is regulating, but have merely made a particular choice of how to operate in that market–a choice Congress can regulate and penalize.
Whether this case moves to the Supreme Court on an expedited basis or not, it is surely headed there sooner or later. But members of Congress should neither count on the Court, nor bow to its reasoning when it does come. If they think the law is unconstitutional, they must act themselves, to repeal and replace it.