"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I.This is the first ruling against the health insurance reform law which passed Congress in early 2010. A federal trial judge in Michigan had previously ruled that the individual mandate is authorized by the commerce clause in Article I §8 of the Constitution. Another federal judge, this time in the Western District of Virginia, has upheld the constitutionality of the Minimum Essential Coverage Provision, aka individual mandate. That case, Liberty University v. Geithner and Virginia v. Sebelius must be reconciled by the Fourth Circuit.
The government will certainly appeal today's ruling to the Fourth Circuit, which has traditionally been among the more conservative circuits in the country. The Michigan case, which the government won on the same argument, is under review by the Sixth Circuit. In the Michigan case, the appellant's brief is due on Wednesday, December 15th. The government has until January 14th to respond to that filing.
The more one reads Judge Hudson's opinion, the more one realizes that challenges to laws on their facial constitutionality are a Rohrschach Test for the judge's views on the Constitution. Judge Hudson believes that the individual mandate is not given additional support by the Necessary and Proper because he believes that regulating individual's decisions not to participate in the insurance market is not proper, whereas Steeh, the judge who affirmed the constitutionality of the individual mandate in the Michigan trial, believes that it is. There's not much analysis on the question because it really is a gut-check. In fact, Hudson refuses to look at the Congressional findings on whether it is necessary because he views Morrison as saying these findings wouldn't be sufficient evidence to enter into a rational basis equation. This pretty much forces him to rely on his preferences.
Henry Hudson has not ordered an injunction of the PPACA from taking effect, finding no irreparable harm is likely soon, as the individual mandate does not activate until 2014. The opinion is merely declaratory. He only finds that §1501(b) and all provisions which rely upon it are unconstitutional, so the bulk of the reforms will continue to be implemented even if the ruling survives review of the Fourth Circuit and the Supreme Court. In essence, removing the individual mandate would destroy the legislative deal that the health insurance industry made with other stake holders. They would lose their incentive for cooperation with implementation of the PPACA, and would return to lobbying for scrapping the remnants of the deal altogether.
For the opponents of the individual mandate who supported the broader cause of universal access to health insurance, this decision might not be a bad outcome. I wonder if operation of the PPACA is plausible if this section is removed. There may be a congressional fix that would fall less directly on individuals; equally likely would be an all-out assault by the health insurance industry on any requirements not already enacted. Is there a health policy expert who could offer an analysis of the PPACA sans individual mandate? It would require $4 billion in implementation funding that the tax would have raised, but assuming that could be covered by a more rational corporate tax rate, millionaire inheritance tax, or adding a top income tax bracket at $1 million, what's the loss?
I'm going to bow to the fact that I have to do other things than research and analyze this decision today, but if you are looking for more insightful analysis, I'm finding this blog to be an excellent resource on tracking the Affordable Care Act in the Courts.
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