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National Review Online


Virginia v. Sebelius: There Is No Easy Way Out for Obama

December 13, 2010

By Paul Howard

Obamacare has always been deeply controversial. But the arguments over its purported unconstitutionality have always been hypothetical. Until now.

On Monday, Virginia district court Judge Henry Hudson ruled that the individual mandate to buy health insurance under the Affordable Care Act is an unconstitutional expansion of Congress’s Commerce Clause powers. Obamacare’s defenders now have to face a powerful, closely reasoned judicial argument that the Affordable Care Act does something that no prior act of Congress has done: define the refusal of an individual to buy a product as interstate commerce.

Hudson writes that the “expansive interpretation of the concept of activity” championed by Secretary Sebelius could equally apply to “transportation, housing, or nutritional decisions” and “lacks logical limitation and is unsupported by Commerce Clause jurisprudence.” He concludes that:

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. In doing so, enactment of the [mandate] exceeds the Commerce Clause powers vested in Congress under Article I.
Hudson’s decision severs the unconstitutional mandate from the rest of the legislation, which can continue to be implemented as written. The case is also destined for a Supreme Court hearing, probably within the next year or two, that will decide the ultimate fate of the legislation. In that sense, Judge Hudson’s ruling is far from a death knell for Obamacare. But in a more important sense, as Professor Richard Epstein noted earlier, the decision puts the government into a “real pickle.”
Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance.

In other words, there is no way to justify this legislation without abrogating almost any meaningful limitation on Congress’s powers to regulate individual behavior in the name of some greater policy good. Most Americans will find this fact deeply unsettling, if not actually repulsive. Having put himself into a pickle, President Obama will not be able to find any easy way out.

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