One of the key provisions of the Obama administration’s healthcare law has been struck down as unconstitutional by Federal District Court Judge Henry E. Hudson. The decision is the culmination of a lawsuit brought by the Commonwealth of Virginia against Health and Human Services Secretary Kathleen Sebelius.
The complaint was filed by Virginia’s Attorney General Kenneth Cuccinelli in the Eastern District of Virginia in March of this year. It sought to prevent the enforcement of something often called the “individual mandate” but euphemistically referred to in the healthcare law as the “minimum essential coverage provision.”
The Virginia lawsuit said bluntly and accurately that beginning in 2014 this provision of the Obamacare law (section 1501) would require Americans “to purchase health insurance for themselves and their dependents subject to a civil penalty.”
Furthermore, the Commonwealth’s lawsuit stated that provision 1501 would force “healthy young adults and other rationally uninsured individuals” to purchase insurance in order to “cross subsidize older and less healthy citizens.”
Now, due to the persistence of Attorney General Cuccinelli, that provision has been found to be constitutionally flawed, albeit by a lower-level federal court.
The important question is this: On what basis did the Obama administration and the Congress believe they could use the force of law (IRS enforcement) to compel U.S. citizens to purchase a service, in this case health insurance, against their will? More specific, where in the Constitution is Congress given that kind of power?
The answer to that question, given by Judge Hudson, is a blunt, “nowhere.”
The expansive jurisprudence of the New Deal has given Congress and President Obama the boldness to try to augment federal power, to the point where such power has no limits.
What power does Secretary Sebelius rely upon in arguing for the validity of this healthcare mandate? She claims that Congress’ power to “regulate interstate commerce” supports the government’s right to insist that persons purchase this kind of insurance or suffer monetary penalties.
What about this claim?
There is no question that the federal government is given a power to regulate commerce among the several states. The original interpretation of this clause required that in order for Congress to regulate commerce, the commerce must take place between persons located in two different states.
Eventually, however, through more and more strained interpretations, the court came to regard almost any economic activity as part of interstate commerce. That view found its nearly comic zenith in 1934 in the case of Wickard v. Filburn, where an Ohio farmer who grew grain on his own farm and fed it to his own livestock was found to have engaged in interstate commerce.
However, Judge Hudson, aware as he was that the court in the past had gone very far toward regarding almost anything as interstate commerce, refused to countenance the view that refusing or failing to buy a service such as medical insurance was interstate commerce.
As he said: “A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause … to encompass regulation of a person’s decision not to purchase a product …. At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate.”
This case is about individual liberty, and Judge Hudson’s well-reasoned, 42-page decision aggressively and firmly protects that liberty.
What will happen upon appeal remains to be seen. But it is evident that there will be appeals to the circuit court level and to the U.S. Supreme Court.
What is even more certain is that the Supreme Court will have a clear choice. It will have to decide whether Americans still have the right to refuse to purchase a good or service or whether they will have lost that right to federal bureaucrats whose voracious appetite for power seems insatiable.
[Dr. John A. Sparks is dean of the Calderwood School of Arts & Letters at Grove City College, Grove City, PA, where he teaches constitutional law and business law. He is a practicing lawyer and a fellow for educational policy with The Center for Vision & Values. His email address is jasparks@gcc.edu.]
