Thursday’s ruling, by U.S. District Judge Roger Vinson, that the constitutional challenge to ObamaCare will proceed to trial has caused quite a bit of comment by constitutional scholars. Hadley Heath has a good round-up:
Stephen B. Presser, Professor of Legal History, Northwestern University School of Law:
In Judge Vinson’s extraordinarily-detailed and thoughtful opinion he has concluded that the plaintiffs in the Florida case have stated “a plausible claim” that Obamacare’s individual mandate requiring all Americans to purchase health insurance crossed “the line” of unconstitutionality. This was because, in his view (which I believe to be correct), never before has Congress used its power to regulate interstate commerce to regulate decisions that people had made not to act.
James W. Ely, Jr, Professor of Law, Vanderbilt University:
Particularly noteworthy is the holding that the individual mandate requiring individuals to purchase health care insurance or pay a fine might exceed the scope of Congressional power under the commerce clause. This mandate is simply unprecedented in American history. As the court pointed out, Congress does not have unlimited authority over American life. The government’s efforts to justify the individual mandate as affecting commerce are dubious even under an expansive reading of the commerce clause.
Randy Barnett, Professor of Legal Theory, Georgetown Law:
In denying the government’s motion to dismiss the challenge to the individual health insurance mandate, Judge Vinson ruled that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.” This is because of the unprecedented nature of the government’s claim of power. As Judge Vinson explained, all previous commerce clause cases involved the regulation of “voluntary undertaking[s]” or activity. But “in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it.
David B. Kopel, Adjunct Professor, Advanced Constitutional Law, Denver University, Sturm College of Law:
The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that the it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm.
Ilya Somin, Associate Professor of Law, George Mason University School of Law:
This ruling, like the Virginia decision before it, is an important success for the plaintiffs in the individual mandate case. The judge refused the federal government’s motion to dismiss and emphasized that the individual mandate cannot be upheld by reference to any current precedent. Of special note is the fact that Judge Vinson rejected one of the federal government’s main arguments - the claim that the mandate is constitutional because it is a “tax” - outright.
Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute:
Nobody can ever again suggest with a straight face that the legal claims are frivolous or mere political gamesmanship. And that should come as no surprise to those who have been following the litigation because the new law is unprecedented — quite literally, without legal precedent — both in its regulatory scope and its expansion of federal authority. Never before have courts had to consider such a breathtaking assertion of raw federal power — not even during the height of the New Deal.
The excellent new blog from the Independent Women’s Forum, Constitutionality Corner, has more on the nuances of this and the various other cases challenging Obamacare’s constitutionality.
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