Bench Memos

Individual Mandate Voided in Virginia

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.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Most Popular

Liberalism as Faith

The British philosopher John Gray is not someone to shy away from ‘difficult’ topics. If you are looking for a provocative long read this weekend, his new article in the Times Literary Supplement ought to be a contender. I didn’t agree with all of it (for example, I would argue that the supposedly ... Read More
Culture

Our Cultural Crisis: A Kirkian Response

Editors’ note: The following article is adapted from a speech the author delivered at the Heritage Foundation on March 14, 2018. Few would dispute that we are in the middle of a grave cultural crisis. A despairing conservative critic wrote: “We are on the road to cultural disaster.” He placed the ... Read More
Politics & Policy

An Enduring Error

Editor’s Note: The following piece originally appeared in City Journal. It is reprinted here with permission. Fifty-one years ago, in July 1967, in response to an explosion of rioting in poor black urban neighborhoods around the United States, President Lyndon B. Johnson created the National Advisory ... Read More
Culture

The Mournful, Magnificent Sally Mann

‘Does the earth remember?" The infinitely gifted photographer Sally Mann asks this question in the catalogue of her great retrospective at the National Gallery in Washington. On view there is her series of Civil War battlefield landscapes, among the most ravishing works of art from the early 2000s. Once sites ... Read More