Legal Commentary

Key points in Virginia v. Seblius

By David Kopel

1. The facial challenge is allowed. See Lopez, Morrison. Salerno distinguished. pp. 7?9.

2. Rejection of the theory that the decision not to purchase federally-mandated is an ?economic activity? since the individual will almost certainly purchase health services at some time in the future. ?Of course the same reasoning could apply to housing, transportation, and nutritional decisions. This broad definition of economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.? Since Wickard and Raich involved the decision to initiate the activity of cultivating plants. p. 23.

3. Necessary & Proper ?must be tethered to the lawful exercise of an enumerated power.? ?The Minimum Essential Coverage provision is neither within the letter nor the spirit of the Constitution.? Therefore N&P can?t be used to rescue the mandate. p. 24.

4. Is the penalty defensible under the tax power? No. First, it is a penalty, not a tax. The distinction between penalties and taxes is still viable. Kahriger. Congress chose to characterize the penalty as a ?penalty,? and changed earlier drafts which had called it a ?tax.? pp. 32?36. Sunshine Anthracite Coal, Butler, and the Child Labor Tax Case remain good law. ?Notwithstanding criticism by the pen of some constitutional scholars, the constraining principles articulated in this line of cases, while perhaps dormant, remains viable, and applicable to the immediate dispute. Although they have not been frequently employed in recent years, this absence appears to be more the product of the unprecedented nature of the legislation under review than an abandonment of established princples.? ?If allowed to stand as a tax, the Minimum Essential Coverage provision would be the only tax in U.S. history to be levied directly on individuals for their failure to affirmitively engage in activity mandated by the government not specifically delineated in the Constitution.? pp. 32?36.

5. There are ?no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a persons?s decision not to purchase a product....The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage provision would invite unbridled exercise of federal police powers.? p. 37.

6. The manate and related provisions are severed. The rest of the bill is allowed to stand. (pp. 39?40).

7. No injunction at this point because no irreperable harm pending appellate review. However, it is presumed that the executive branch will obey judicial decisions, so a declaratory judgement has the same effect as an injunction. pp. 40?41.

Full post as published by The Volokh Conspiracy on December 13, 2010 (boomark / email).