Federal Judge Henry Hudson has found parts of ObamaCare unconstitutional. Professor William Jacobson of Legal Insurrection highlights the principal elements of the decision. He based his opinion on the individual mandate to purchase health insurance, rejecting the government's argument it was a tax:
It is clear from the text of Section 1501 that the underlying regulatory scheme was conceived as an exercise of Commerce Clause powers. This is supported by specific factual findings purporting to demonstrate the effect of the health care scheme on interstate commerce. In order for the noncompliance penalty component to survive constitutional challenge, it must serve to effectuate a valid exercise of an enumerated power-here the Commerce Clause. [p. 36]
He rejected stretching the Commerce Clause to allow the government to mandate purchases, noting it opened the gate to unbridled power:
A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme.
The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance-or crafting a scheme of universal health insurance coverage-it's about an individual's right to choose to participate. Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. See U.S. Canst. amend. X; Printz v. United States, 521 U.S. 898, 919, 117 S. Ct. 2365, 2376-77 (1997). [p. 37]
On careful review, this Court must conclude that Section 1501 of the Patient Protection and Affordable Care Act-specifically the Minimum Essential Coverage Provision-exceeds the constitutional boundaries of congressional power. [at p. 38]
Judge Hudson also found that the mandate could be severed from other parts of the law, meaning the rest of the law remains in effect.
Obviously, this is a huge defeat for Obama, and it will be appealed all the way to the Supreme Court.
Virginia Attorney General Ken Cucinelli will be holding a press conference on the decision two hours after the decision. Stay tuned for more.
Full text of the decision here.
Hat tip: Clarice Feldman