Metal Sludge Gossip Board

Judge Henry Hudson of the Eastern District of Virginia denied the government’s motion to dismiss Virginia’s legal challenge to Obamacare. Notably, Judge Hudson agreed with Cato senior fellow Randy Barnett (see here, here, and here) that the government’s assertion of Commerce Clause authority for the individual mandate is unprecedented:

The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

And that goes for the government’s arguments generally:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate–and tax–a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Give the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this time stage that the Complaint fails to state a cause of action.

In other words, at this first, early stage of litigation, Virginia’s lawsuit survives and the government has a real fight on its hands. Read the whole opinion here.

Now, this ruling does not decide the merits of the case and is not binding on any other court in any of the other Obamacare lawsuits — on Friday, for instance, Florida is due to file its brief opposing the government’s motion to dismiss the 20-state suit — but it is a beachhead in the fight against big government. Judge Hudson’s opinion should finally silence those who maintain that the legal challenges to Obamacare are frivolous political ploys or sour grapes. The constitutional defects in the healthcare “reform” are very real and quite serious. Never before has the government claimed the authority to force every man, woman, and child to buy a particular product – and indeed such authority does not exist (as Cato’s amicus brief argued).

cato-at-liberty.org

"The Constitution does not authorize the Congress to regulate the state governments. Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthc...are, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done. That’s called commandeering legislature. That’s the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That’s prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail."

The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it—the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others—create “a very unique and tricky constitutional problem” for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution’s equal protection clause according to Napolitano. “So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don’t have to pay what the rest of us do,”

Exempting union members from the so-called “Cadillac tax” on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. “The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can’t say, ‘Here’s a tax, but we’re only going to apply it to nonunion people. Here’s a tax, and we’re only going to apply it to graduates of Ivy League institutions.’ The Constitution does not permit that type of discrimination.”

- former New Jersey Superior Court Judge Andrew Napolitano