Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan.
The suit by the state of Virginia focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by 2014 or pay a fine for noncompliance. A similar suit has been filed by 20 other state governments and the National Federation of Independent Business in a federal court in Florida.
Judge Henry Hudson wrote that the individual mandate “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.” As he put it, “No reported case from any federal appellate court has” ruled that Congress has the power to “regulate a person’s decision not to purchase a product.” This undercuts the federal government’s argument that the individual mandate is clearly permitted under existing precedent.
The federal government claims that Congress has the power to impose it under the Commerce Clause, the Tax Clause, and the Necessary and Proper Clause. All three arguments have serious flaws.
The Commerce Clause gives Congress authority to regulate “Commerce . . . among the several states.” But the individual mandate regulates that which is neither commercial nor interstate. A combination of state and federal law makes it illegal to purchase health insurance across state lines. At most, what we have here is commerce within a single state, not interstate commerce.
Moreover, the object of the mandate isn’t even commerce at all. Instead of regulating preexisting commerce, the bill forces people to engage in commercial transactions even if they had no previous involvement in interstate commerce in health insurance at all.
A series of deeply flawed Supreme Court decisions have expanded Congress’ Commerce Clause authority well beyond what the text of the Constitution permits. These cases allow the federal government to regulate almost any “economic activity.”
But, as Judge Hudson points out, even they do not give Congress the power to regulate mere inactivity – in this case, the simple fact of being a U.S. resident without health insurance.
The Tax Clause gives Congress the power to impose taxes to “pay the Debts and provide for the common Defence and general Welfare of the United States.” The government argues that the mandate counts as a “tax” because it imposes a financial penalty.
This ignores the obvious distinction between a tax and a financial penalty for refusing to comply with a regulation. Last September, President Obama himself made the common sense point that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the government’s argument is accepted by courts, Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse.
Finally, the federal government argues that the mandate is authorized by the Necessary and Proper Clause, which gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” other powers Congress is granted by the Constitution.
But even if the mandate were “necessary,” which is far from certain, it is not “proper” under our constitutional system of limited federal authority. If the clause allows Congress to adopt the individual mandate, the same logic would justify almost any other requirement Congress might impose on individuals, thereby gutting the idea of limited federal power.
This ruling does not conclusively decide the case in Virginia’s favor. It merely denies the federal government’s motion to dismiss the suit on the grounds that the state’s arguments are too weak to justify a full-scale consideration of the merits. The legal battle over the Obama health care plan is far from over.
Nonetheless, Hudson’s ruling is a victory for those who believe that the individual mandate is unconstitutional. It makes it difficult to argue that the lawsuits against the mandate are mere political grandstanding with no basis in serious legal argument.
Ilya Somin is an associate professor at George Mason University School of Law, where he teaches constitutional law and has written extensively on federalism and constitutional limits on federal power.
