Monday, December 13, 2010

The Health Insurance Mandate in the Courts

As all the news outlets are reporting (e.g., here), a Virgina court today invalidated the Health Care Law's insurance mandate. Judge Henry E. Hudson's ruling in Virgina v. Sibelius can be read here. Importantly, the judge declined to stay implementation of the law while his decision is appealed.

I am not a constitutional commerce-clause expert, but I have previously blogged (here) about my belief that the insurance mandate is constitutional because the government, as long ago as the Second Militia Act of 1792, signed into law by President George Washington, required citizens to supply their own muskets and other equipment. Judge Hudson neglects this history.

The law blogs are all abuzz about Judge Hudson's decision. I am persuaded by a couple of negative reviews from  relatively conservative (but eminently fair-minded) commentators, including my colleague Gerard Magliocca (at writing at Concurring Opinions here) and George Washington University Law Professor Orin Kerr (writing at The Volokh Conspiracy here), each of whom finds Judge Hudson's ruling to contain important legal errors.

Today's decision was the third federal district court ruling on the constitutionality of the Health Care Act, and the first to rule against any provision of the statute. Interestingly, the first two federal judges who upheld the statute were both Clinton appointees. Judge Hudson is an appointee of George W. Bush. Do you suppose  ideology/party affiliation have anything to do with the respective outcomes?

UPDATE: According to reports (e.g., here), Judge Hudson, who ruled against the Health Care Act today, holds a stake of between $15,000 and $50,000 in a Republican consulting firm that lobbied against the Act's passage in Congress. This is reminiscent of BP oil spill case, where judges with substantial financial stakes in the gulf oil industry ruled against the Obama Administration's moratorium on deep-sea exploration and drilling (see here and here).


  1. I don't get the framing of the mandate as a "requirement to buy" insurance. Hospitals are required by law to provide care for life-threatening conditions regardless of the ability to pay (i.e., a very limited form of universal health care). These expenses are written off, so ultimately payed for by tax payers. so (1) institute a tax to pay for this health care and (2) give a tax credit to people who have insurance. What, do conservatives love free-riders all of a sudden?

  2. I agree that the issue might be framed in various ways. Indeed, the government attorney's defending the law apparently argued (to no avail) that the mandate was tantamount to a tax. But there is no reason to suppose that the Constitution sanctions all means of achieving the same functional outcome.

    In this case, I don't think the government needs to frame the mandate as anything other than what it is: a requirement that individuals purchase insurance or suffer a fine. I just do not see that requirement as being either historically anomalous or outside the scope of the Commerce and Necessary and Proper Clauses.


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