Critical Condition

Judge: Individual Mandate ‘Forges New Ground’

As has been reported widely, U.S. District Court Judge Henry Hudson rejected arguments that Virginia had no standing to sue the government over the individual mandate. A full hearing will take place in Richmond in October.

Dan Foster, over at the Corner, highlights commentary from Ashby Jones of the Wall Street Journal Law Blog, noting that the ruling “will force the Obama administration to mount a lengthy legal defense of the law.”

The Volokh Conspiracy is a go-to blog for matters of constitutional law, and there Jonathan Adler flags down the district court opinion. Volokh Conspiracy colleagues Ilya Somin and Randy Barnett also comment on the decision. Writes Somin:

Although states are generally not allowed standing to litigate the interests of their citizens, Hudson argues that Virginia has standing because the federal health care bill conflicts with a recently enacted Virginia state law, the Health Care Freedom Act. This, he argues, is enough to give Virginia standing, overcoming the sorts of federal government standing arguments that I discussed in this post. This argument may have negative implications for the other major lawsuit against Obamacare, filed by 20 states and the National Federation of Independent Business. Most of those states do not have state laws comparable to the Health Care Freedom Act. NFIB, however, has individual members who are subject to it, such as self-employed businessmen.

Significantly, Judge Hudson agreed with Virginia that the individual mandate is without precedent:

Hudson agrees with co-blogger Randy Barnett that the individual mandate isn’t clearly covered by existing Supreme Court precedent under either the Commerce Clause or federal government’s power to tax. He argues that this provision “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.” He takes the same view of the government’s Tax Clause argument.

Barnett emphasizes the political implications of the ruling:

Essentially, from day one, politicos like Nancy Pelosi and numerous law professors have been saying about the constitutional challenge to the individual mandate: “Nothing to see here folks, move along.” Today Judge Henry Hudson ruled, “there is something to see here folks, let’s stop and evaluate carefully.” That is a big step… While today’s ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous.

Judge Hudson summarizes it simply: “Never before has the Commerce Clause and Necessary and Proper Clause been extended this far.”

This is the first shot in what will be a long battle. As I have commented before, even if the individual mandate is overturned, it is likely that the courts will rule to preserve the remainder of PPACA. This is strongly implied by the Supreme Court’s June ruling on the Sarbanes-Oxley Act, in which one provision of the law was struck down, while the rest was preserved.

Still, it is encouraging to see that some jurists still believe that there remain limits on the power of the federal government.

Avik Roy — Avik Roy is the President of the Foundation for Research on Equal Opportunity (, a non-partisan, non-profit think tank.

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