Legal Commentary

Is Judge Hudson?s Opinion ?Irresistible??

By Jonathan H. Adler

In today?s NYT, Brooklyn Law?s Jason Mazzone explains why Judge Hudson?s analysis in Virginia v. Sebelius may prove ?irresistible? to the Supreme Court.

When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must be, on this federal power?

Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate ?activity,? as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress?s power under the Constitution?s interstate commerce clause have involved Congress regulating some kind of activity that is already occurring. . . .

In addition, parsing the distinction between activity and inactivity provides a way for the justices to strike down the individual mandate without having to overturn any precedent. . . .

Judge Hudson?s critics say that a distinction between action and inaction is unworkable. After all, individuals who do not purchase health insurance engage in activity when they go to an emergency room for care. Yet a Supreme Court that for more than a century has struggled to define the limits of federal commerce power might, like Judge Hudson, refuse to find actions beyond the insurance market itself pertinent to an analysis of the law.

The op-ed builds upon Prof. Mazzone?s blog analysis that I noted here.

Full post as published by The Volokh Conspiracy on December 17, 2010 (boomark / email).