When Virginia Attorney General Ken Cuccinelli filed Commonwealth of Virginia v. Sebelius challenging the constitutionality of ObamaCare’s individual mandate, the White House and its many friends in the “news” media attacked him personally and called the suit “frivolous.”
Well, evidently, that strategy didn’t cut much ice with U.S. District Judge Henry Hudson. During last October’s hearing in this case, Hudson showed considerable skepticism about the validity of the mandate. Today, he declared that provision of PPACA unconstitutional:
Federal judge Henry Hudson has issued a ruling finding part of President Barack Obama’s health-care law unconstitutional, according to early news reports … Judge Hudson invalidated the part of the landmark healthcare law that requires individuals to buy health insurance.
That’s the central provision of ObamaCare, and Hudson says Congress has no constitutional authority to impose such a requirement on the electorate. Disappointingly, he failed to strike down the entire law pursuant to its lack of a severability clause. Here’s the relevant passage on that issue:
Having found a portion of the Act to be invalid … the Court’s next task is to determine whether this Section is severable from the balance of the enactment … this Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501.
This is unfortunate, but it’s no great surprise. To a layman, the severability issue is simple. In the context of previous Supreme Court decisions, however, it’s pretty murky. In my piece last week for the American Spectator, I wrote that it was by no means a given that Hudson would act decisively on this issue:
[Judge Hudson] has shown skepticism about the mandate, but that issue is relatively straightforward compared to the severability question … On severability, Hudson’s choices are more numerous and the legal precedents are less auspicious. In fact, the Supreme Court recently invalidated an important part of the Sarbanes-Oxley accounting law, which contains no severability clause, while leaving the rest of its provisions in place.
It’s no small thing to shoot down the mandate, and Hudson is to commended for his courage in doing so, but it isn’t what many of us had hoped for. This is by no means over, of course. As Hudson put it during the October hearing, “[T]his is only one brief stop on the way to the United States Supreme Court.”
UPDATE:
Michelle Malkin provides a good round-up of various Democrats who sneered at the notion that Congress lacks the authority to command every American to buy health insurance. She includes a delicious audio clip in which Nancy Pelosi, in response to a reporter’s question on this point, incredulously asks ”Are you serious?”
I think the answer to that question can now be answered with a resounding “Yep.”
Comments 1
Judge Hudson’s decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and there remain substantial political powers who regard this vast extension of federal power as acceptable based upon the Supreme Court’s vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause.
Posted 14 Dec 2010 at 1:10 am ¶Trackbacks & Pingbacks 2
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