A Judge in Virginia has held the health care mandate to be unconstitutional.  The decision is here and embedded below.

The Judge rejected the position of the government that the mandate was an exercise of taxing power:

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. [at p. 36]

The Judge found that there was no legitimate Commerce Clause or General Welfare Clause justification for the mandate:

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).  [at 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]

The Judge also ruled that the Mandate could be severed from unrelated provisions of the law.  [at p. 40]The Judge declined, however, to issue an injunction, stating that there was no emergency since the mandate did not take effect until 2013 at the earliest.  [at pp. 41-42]

Updates: 

It is interesting how the politics of the mandate have come back to haunt the administration.  Because Obama did not want to be seen as raising taxes on people making under $250,000, during the debate and drafting the Democrats went out of their way to disavow the mandate as a tax, and to rely on the Commerce Clause.  After the mandate was challenged in court, the administration tried to backtrack and justify the mandate under the general taxing power.  But the Judge did not accept that flip-flop, ruling that the congressional record and text of the legislation prevailed.

As to why the Judge did not throw out the entire law, the Judge stated that there is a presumption of severability, and the congressional record was sufficiently muddled as to whether Congress would have passed the legislation without the mandate.  Interestingly, the Judge noted that the law was about more than healthcare and was rushed to a vote on Christmas eve (emphasis mine):

Having found a portion of the Act to be invalid, the Section 1501 requirement to maintain minimum essential health care coverage, the Court’s next task is to determine whether this Section is severable from the balance of the enactment. Predictably, the Secretary counsels severability, and the Commonwealth urges wholesale invalidation.  The Commonwealth’s position flows in part from the Secretary’s frequent contention that Section 1501 is the linchpin of the entire health care regimen underlying the ACA.  However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care-over 400 in all…. [at p. 38]

The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to heath care, without Section 1501. [at p. 39]

Cuccinelli v Sebelius – Memorandum Granting Motion for Summary Judgment 12-13-2010 http://d1.scribdassets.com/ScribdViewer.swf

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