UNCONSTITUTIONAL - Judge Hudson Rules in Virginia


By Hadley Heath

BREAKING NEWS - Judge Henry Hudson is the first federal judge to rule that ObamaCare's individual mandate is unconstitutional.  Stay tuned to www.healthcarelawsuits.org for the latest information.  Read the 42-page Opinion from Judge Hudson here.  Here's what the experts are saying today:

Randy Barnett, Professor of Legal Theory, Georgetown Law:

This decision is big deal.  We finally have a formal ruling that the mandate is unconstitutional.  Had it gone the other way, the administration would have crowed that every judge has dismissed the challenge, which would show the challenges to be frivolous.  No one can claim that now.  Thursday morning, Judge Vinson hears argument in the  Attorneys General lawsuit in Florida.  Having already expressed skepticism of the government's Commerce Clause theory, and dismissed its tax power claim, today's opinion can be expected to bolster Judge Vinson's instinct that this unprecedented claim of power is unjustified by existing precedents.


Carrie Severino, policy director and counsel for the Judicial Crisis Network (JCN) and former law clerk for Justice Thomas:

JCN applauds today's decision for its recognition that the federal government's arguments in favor of Obamacare would effectively eradicate all limits on Congress.  This ruling should remind the Obama administration that  the people granted the national government limited, specifically enumerated powers through the Constitution, not a blank check to engineer American life from Washington.  We agree with Judge Hudson that the individual mandate is "neither within the letter nor the spirit of the Constitution," and are confident that Judge Vinson will come to the same conclusion in the multi-state litigation currently pending in Florida.


Jonathan Adler, professor of law, Case Western Reserve University School of Law:

The federal district court’s decision declaring portions of federal health care reform unconstitutional reaffirms that the federal government has limited and enumerated powers.  The theories advanced by the federal government in support of the mandate were without bounds and could have justified virtually unlimited federal control of private activity.  Reforming America’s health care system is important, but just like everything else, from national security to environmental protection, it must be done in a way that’s consistent with constitutional principles.


Stephen B. Presser, professor of legal history, Northwestern University:

It will be some time (probably a year or two) before the United States Supreme Court finally decides this issue, but those (like Speaker of the House Nancy Pelosi, and perhaps the President of the United States himself) who ridiculed those of us who still championed a limited Constitution and pointed out that Obamacare went too far have now been vindicated.   When the speaker was told there was a powerful argument that Obamacare was unconstitutional, she reportedly asked "Are you serious?"  She and those who fail to understand our Constitutional scheme have now been taught a lesson by a wise Virginia federal judge.


Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, Editor-in-Chief of the Cato Supreme Court Review:

Yes, Virginia, there are limits on federal power.

Today is a good day for liberty.  And a bad day for those who say that Congress is the arbiter of Congress’s powers.  By striking down the individual mandate, Judge Hudson vindicated the idea that ours is a government of delegated and enumerated—and thus limited—powers.  Even if the Supreme Court has broadened over the years the scope of Congress’s authority to legislate under the guise of regulating interstate commerce, “the constraining principles articulated in this line of cases… remains viable and applicable to the immediate dispute.”

In short, we have come a long way from the days when pundits dismissed the lawsuits challenging the new health care law as frivolous political gimmicks.  This is just one district court—whose opinion is not binding on the judges who will now consider the government’s appeal—but we can now see the day where this unprecedented assertion of federal power is definitively rejected as fundamentally contrary to our constitutional order.

As Judge Hudson said, “Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds.  Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers."


David B. Kopel, Adjunct Professor, Advanced Constitutional Law, Denver University, Sturm College of Law:

Judge Hudson's decision was solidly grounded in law. While recognizing that Supreme Court precedents have interpreted the congressional interstate commerce very broadly, he also understood that there are limits to federal power. In particular, he rejected that contention that the decision not to purchase a federally-designed health insurance policy is "economic activity." As he explained, declaring economic inactivity to be "economic activity" would give the federal government unlimited power over "housing, transportation, and nutritional decisions." Thus, the insurance purchase mandate "is neither within the letter nor the spirit of the Constitution."

Virginia's victory today increases the probability that the issue will be taken up by the Supreme Court. In analyzing the case, the Supreme Court will discover, as Judge Hudson did, that there "no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a persons's decision not to purchase a product."

In short, Obamacare is an unprecedented expansion of federal power far beyond the text of the Constitution and judicial precedents. The American people said so throughout 2009-10, and on November 4. On December 13, the federal district court acknowledged that they were correct.


Ilya Somin, Associate Professor of Law, George Mason University School of Law:

Judge Hudson's ruling is important because it is the first to strike down the individual mandate. The opinion is absolutely right to emphasize that the mandate cannot be upheld under existing Supreme Court precedent because it does not regulate any kind of preexisting economic activity. If this law were to be upheld, Congress would have virtually unlimited power to impose any mandate it wishes. For example, it could require everyone to purchase cars or to exercise every day on the grounds that either would have an impact on the economy or on the market for health care.


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