Va. federal judge strikes down health care law

I just love irrelevant hypotheticals... I could sit and watch 'em for hours..

Maybe a reason to not celebrate quite so.... prematurely?

http://volokh.com/2010/12/13/the-signif ... s-opinion/

This IS from a conservative site BTW.....

I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:
If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.


Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson’s error leads him to assume away as a matter of “logic” what is the major question in the case. That is unfortunate, I think.

It WILL be interesting to see how this plays out. IMO, at a minimum it will weaken the ruling IF it makes it to the SCOTUS, and probably will be reversed on appeal before it even gets there.....

Another hurdle of the ruling:

http://tpmmuckraker.talkingpointsmemo.c ... stions.php

Federal judge Henry E. Hudson's ownership of a stake worth between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform -- the very law against which he ruled today -- raises some ethics questions for some of the nation's top judicial ethics experts. It isn't that Hudson's decision would have necessarily been influenced by his ownership in the company, given his established track record as a judicial conservative. But his ownership stake does create, at the very least, a perception problem for Hudson that could affect the case.

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Yep... That's the link I stumbled on this morning... This is by NO MEANS a slam-dunk just because this one tainted judge arrived at the conclusion he wanted to get to before he started.

regardless of the rulings it was going to be kicked upstairs - appealed.

but interesting to see what kind of arguments are probably going to be made

How do you address the conclusion that this law violates the Necessary and Proper clause due to inactivity? I find extremely relevant the idea that Congress cannot require you to participate in commerce of any kind without an active decision on your part, don't you? I mean, I think it is a stretch to say that they have the ability to intrude when you are planting wheat for your own consumption because that will impact the amount of commerce that takes place in the wheat market to begin with, but at least the argument that you actively undertook an action allows the stretch to be made.

If I don't actively participate in a market segment, by what rights do they have the ability to compel me to do so, and where will such an expanded power stop? Can they require that I purchase an automobile for instance? Can they require I purchase a home or land instead of renting? Can they require I purchase dental insurance, vision insurance, life insurance, disability insurance as well as health insurance? I am, after all, going to die someday as nobody gets out of here alive. Isn't that the essence of the argument being forwarded as to why they can compel the purchase of health insurance? That since I will at some point need the services of a doctor they can compel the purchase of the insurance to make sure the doctor is paid for his service?

My eyesight won't always be such that I don't require corrective measures be taken in order for me to see. Does that mean I can be compelled to purchase vision insurance as well? At what point between cradle and grave would the federal government not have the right to compel me to participate in a specified section of commerce if this mandate is ruled constitutional? Can I be mandated to purchase a computer so that all my banking can be done online instead of at the local branch of the bank? Can I be mandated to mail letters or pay a special tax so that the Post Office remains viable because at some point in my life someone is going to need to send me a letter and the cost of the Post Office can't be shifted to those that need it on a more regular basis than I myself need it? If this is indeed a constitutional piece of law, is there really any limits on the power of Congress over the people of this nation at all?

Don't you find it highly relevant that most if not all Americans do participate in the economic activity of health care? Do you know of anyone who has not at least had a vaccination, or a doctor's visit, or a physical, if not actual hospital stay? Is it not foreseeable that residents of this country will engage in the economic activity involving health care?

You may certainly engage in far-fetched hypotheticals, but it is clear that health care does involve economic activity, so it is in the purview of Congress to engage in the regulation of the economic activity.