Legal Commentary

Judge Rules Constitutional Challenges to Individual Mandate are Serious

By Randy Barnett

Essentially, from day one, politicos like Nancy Pelosi and numerous law professors have been saying about the constitutional challenge to the individual mandate: ?Nothing to see here folks, move along.? Today Judge Henry Hudson ruled, ?there is something to see here folks, let?s stop and evaluate carefully.? That is a big step.

Since before the Senate passed its version of health insurance reform, constitutional law professors have been quoted as saying that any constitutional challenge to the individual mandate, and other aspects of the bill, are ?frivolous.? Indeed, some of the state attorneys general were severely criticized by local Democratic politicians and pundits for joining on to the lawsuit and thereby ?wasting tax payer dollars.? A few weeks ago, for example, I spoke with several reporters and columnists from Michigan to defend the Michigan AG from this very charge.

While today?s ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous. This is an essential implication of today?s ruling because, had they been frivolous, the motion to dismiss would have been granted. So, no matter what the outcome, today?s ruling vindicates the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power.

And, as Ilya already noted, today?s decision also vindicates the contention that this claim of power 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.

This too is big.

Full post as published by The Volokh Conspiracy on August 02, 2010 (boomark / email).