“This case is not about health care, so much as it is about liberty,” Cuccinelli told reporters when the decision came down. Under the Constitution’s commerce clause, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” the federal government has been able to justify a variety of activities on the grounds that they would have a “substantial impact” on interstate commerce. Beginning in the 1990s, however, the Supreme Court began cutting away at Washington’s ability to regulate non-economic activity under the clause. In 1995, the court found that the clause did not empower the federal government to regulate handguns in school zones. In 2000, the court struck down the federal Violence Against Women Act, finding that gender-related violence did not impact interstate commerce. (The court, however, seemed to retreat somewhat in 2005, when it allowed the federal government to ban the private cultivation of marijuana despite a California law that permitted it for medical use.)
At the heart of Virginia’s case is the argument that when an individual chooses not to buy insurance coverage, he or she is choosing precisely not to participate in economic activity, and thereby is not covered by the commerce clause. “Thus far in our history it has never been held that the commerce clause . . . can be used to require citizens to buy goods or services,” Virginia’s brief states. While state governments require that drivers purchase car insurance for the privilege of driving, for example, the federal health insurance requirement applies to everyone simply because they exist. The Obama administration contends that all people are part of the health care market, whether they buy insurance or not. “Congress understood that virtually everyone at some point will need medical services, which cost money. The [law] merely regulates economic decisions on how to pay for those services—whether to pay in advance through insurance or attempt to do so later out of pocket—decisions that substantially affect the vast, interstate health care market,” states the administration’s brief.
The administration also argues that the penalty for failing to buy insurance is authorized under a section that allows the federal government to impose taxes. Virginia counters that lawmakers had intentionally avoided characterizing the penalty as a “tax” in order to build support for the measure in Congress, and could not retroactively declare it to be a tax in order to make it legal.
Judge Hudson did not express any opinion on the merits of the case, which will await a full trial, but concluded there were enough substantive legal issues raised that the case could go forward.
Nonetheless, the judge, who was appointed to the federal bench by George W. Bush in 2002, appeared to embrace Virginia’s characterization of the issue. “Never before,” he wrote, had the federal government’s power to regulate interstate commerce “been extended this far . . . No reported case from any federal appellate court has extended the commerce clause or the tax clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”
The White House says it had full confidence the law would be upheld, and portrayed the litigants as sore losers. “Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government,” said a statement by White House aide Stephanie Cutter. But opponents of the law are encouraged by the judge’s language. “I think it is very significant,” said Randy Barnett, a law professor at the Georgetown University Law Center in Washington, who filed a friend-of-the-court brief supporting Virginia. “Everything we do and don’t do in life could be said to affect interstate commerce by [the administration’s] logic, which would then give Congress the power over everything—and it’s a basic premise of the American constitutional system that Congress does not have a plenary police power over everything.”
If Judge Hudson or an appeals court strikes down the law, it’s almost certain the issue will reach the U.S. Supreme Court. Many legal analysts say the law will ultimately be upheld. Edwin Chemerinsky, dean of the Irvine School of Law at the University of California, says, “It’s inconceivable to me that the Supreme Court would say that regulating health care doesn’t fit within the commerce clause because it’s a trillion-dollar industry.”
And while courts will eventually have to settle the clash between state and federal law, Barnett said the Virginia judge’s decision will energize support for anti-reform ballot initiatives. “We’ve been told that this argument is fringe-y. But this decision will further feed public perception that the mandate is unconstitutional, which will in turn feed political action against the mandate, which will in turn contribute to an atmosphere that will affect future judicial decisions,” said Barnett. But that may be a bet against history. “Through American history, conservatives have objected to progressive change on states’ rights grounds. The civil rights movement, desegregation, the New Deal, the abolition of slavery—all were opposed on states’ rights grounds,” notes Chemerinsky. “In the end,” he points out, “They didn’t succeed.”
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