Bench Memos

NRO’s home for judicial news and analysis.

The Original Mandate Is Foreign to the Constitution


As most readers know by now, in the first major case to reach a final ruling on the merits, federal District Judge Henry Hudson ruled in favor of Virginia’s challenge, and declared the individual mandate portion of the Patient Protection and Affordable Care Act unconstitutional. After carefully weighing the arguments and precedents, he found that the individual mandate was without precedent in our country’s history. The court also found that it could not be justified even under an expansive view of Necessary and Proper, because it was not tethered to a lawful exercise of an enumerated power. The best quote: “The Minimum Essential Coverage Provision [mandate] is neither within the letter nor the spirit of the Constitution.”

The court’s rejection of the far more dubious “tax” argument is even less of a surprise. This defense is a shameful, post hoc rationalization that does not comport with the operation of the law (the provision raises no general revenue), the language of the law (which uses “tax” and “penalty” with precision), or the statements of its proponents (President Obama emphatically denied that this is a tax), so it is no wonder that this claim failed yet again (a Florida court rejected this claim at the motion-to-dismiss stage).

The court’s remedial rulings were somewhat less predictable. Congress did not provide in the act whether courts should sever unconstitutional provisions, so the court had to decide whether the unconstitutional provisions could be cut from the rest of the 2,700-page law or whether he would have to strike down the entire act. After discussing the general presumption that courts should try to sever only the “problematic portions while leaving the remainder intact,” and the difficulty in divining whether Congress would have enacted the law without the offending provision, the court essentially threw up its hands and applied the general presumption only to strike the individual mandate provision and “directly-dependent provisions which make specific reference to [it].”

Although the severability question is far from clear, we think the statements by the act’s leading sponsors (including Senator Baucus) and President Obama should have prevailed, namely that the individual mandate was absolutely essential to the economic scheme in the rest of the act. In short, Congress would not have enacted the law without the individual mandate, and thus, the entire law should be struck down. Notwithstanding this possible error, the Fourth Circuit Court of Appeals and the Supreme Court are free to reexamine this purely legal issue without deferring to any findings by the district court.

Moreover, even if the rest of the act survives, the end result might still be similar. That’s because many other parts of the act really can’t survive without the coerced payments and mandated coverage of the individual mandate: The economic scheme in the rest of the act — and the prohibition against denying coverage for preexisting conditions — would cause a death spiral of the medical-insurance industry. In short, Congress would have to open up the entire act again or the health-insurance industry would fail.

Todd Gaziano is the director and Robert Alt the deputy director of the Heritage Foundation’s Center for Legal & Judicial Studies.


Subscribe to National Review