Legal Experts React to Health Care Ruling

Is the individual mandate kosher? A judge says no, and the expert reactions flood in

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Here come the lawyers. A federal judge's ruling Monday that a key element of Obama's health care law is unconstitutional has sparked a heated legal debate about the powers of Congress. At issue is the law's requirement that U.S. citizens acquire health insurance. In his ruling, Judge Henry Hudson argued that the individual mandate goes beyond the powers granted to Congress under the Commerce Clause. "At its core, this dispute is not simply about regulating the business of insurance--or crafting a scheme of universal health insurance coverage," Hudson wrote. "It's about an individual's right to choose to participate." Liberal legal scholars strongly disagree with the judge, who was appointed by President George W. Bush. Here is a glimpse of the debate playing out in the media today:

  • This Law Is a Big Departure from the Norm, writes Randy Barnett, a Georgetown law professor in The New York Times, supporting the ruling:
Until 2010, the only mandates ever imposed on American citizens pertained to their citizenship: register for the draft and serve if called, sit on a jury, file a tax return, respond to the census. In the U.S., one cannot even be commanded to vote. If economic mandates like this one are allowed, however, Americans will be demoted from citizens to subjects. They will have to obey any commands that Congress deems convenient to its regulation of interstate commerce.
  • It Is a Vast Overreach, agrees The Wall Street Journal editorial board, asking: "If government can punish citizens for in essence doing nothing, then what is left of the core Constitutional principle of limited and enumerated government powers?" Thus, they conclude, "as the Virginia case shows, ObamaCare really does stretch the Commerce Clause to the breaking point. The core issue is whether the federal government can order individuals to do anything the political class decides it wants them to do. The stakes couldn't be higher for our constitutional order"
  • A Mandate Is Well Within Congress's Powers, disagrees Jack Balkin, a Yale law professor in The New York Times:
When uninsured individuals get sick, they borrow money from their families to pay for the costs of health care. They buy over-the-counter medicines. Above all, they go to emergency rooms and demand medical services. In 2008 these demands cost hospitals some $43 billion. All of these are significant effects on interstate commerce. But according to Judge Hudson's decision striking down the individual mandate, these effects on commerce are completely irrelevant and Congress cannot take any of them into account.
  • And the 'Inactivity' Argument Is Bogus, write Attorney General Eric Holder and Secretary of Health and Human Services Kathleen Sebelius in The Washington Post, responding to claims that "the individual responsibility provision is unlawful because it 'regulates inactivity.' ... None of us is a bystander when it comes to health care. All of us need health care eventually. Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?"

  • This Will Ultimately Come Down to Justice Kennedy, writes Dahlia Lithwick at Slate:
The next major court decision due to come down is in Florida, in a suit brought by 19 other state attorneys general. It will also be hailed or scorned by each side, depending upon the outcome as well as who appointed the judge and that judge's extracurricular political activities. This will continue all the way up through the appeals process, until it slowly laps up to Justice Anthony Kennedy's toenails, then his ankles, and then his chin. This is not really a constitutional debate; it's about policy preferences, and it will be resolved someday in Kennedy's prefrontal cortex.

[Editor's note: the article's author is not related to Judge Henry Hudson]

This article is from the archive of our partner The Wire.