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Blinkered to Reality—A Commentary by Jack Balkin

The following commentary was posted on newyorktimes.com on December 13, 2010.

A Fatal Blow to Obama's Health Care Law? Blinkered to Reality
By Jack Balkin

Introduction:  A federal district judge in Richmond, Va., ruled on Monday that the new health care law's provision requiring individuals to buy health insurance is unconstitutional. Judge Henry E. Hudson wrote that the requirement goes beyond Congress's authority under the Commerce Clause of the Constitution.

Judge Hudson is the first jurist to in the country to invalidate part of the law, ensuring that the issue will reach the appellate courts. Two other federal judges — in Detroit and Lynchburg, Va. — have upheld the insurance mandate.

What arguments are convincing -- or problematic -- in Judge Hudson's decision? And how might this ruling affect the politics surrounding the law?

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. His latest book, with Reva B. Siegel, is “The Constitution in 2020.”

When uninsured individuals get sick, they borrow money from their families to pay for the costs of health care. They buy over-the-counter medicines. Above all, they go to emergency rooms and demand medical services. In 2008 these demands cost hospitals some $43 billion. All of these are significant effects on interstate commerce.

But according to Judge Hudson's decision striking down the individual mandate, these effects on commerce are completely irrelevant and Congress cannot take any of them into account. Congress cannot regulate uninsured individuals, Judge Hudson explained, because these individuals are not doing anything when they fail to buy insurance -- yet they are borrowing money, purchasing drugs, or visiting emergency rooms instead.

This is pure sophistry. Such arguments are reminiscent of the constitutional struggles over the New Deal, when the Supreme Court's conservative majority argued that no matter how great an effect labor strikes had on the national economy, Congress could not regulate working conditions because their effects on interstate commerce were only indirect. Judge Hudson's decision is yet another example of a long line of formalist jurisprudence that is blinkered to reality.

Judge Hudson's other major argument was that Congress cannot justify the individual mandate under its powers to tax and spend for the general welfare. The individual mandate is a tax imposed on people who do not purchase health care; it is part of the Internal Revenue Code and is collected by the I.R.S. However, Judge Hudson argued that Congress had no power to pass the individual mandate under the General Welfare Clause because Congress used the word "penalty" and not the word "tax."

This is, if anything, even worse sophistry, a sort of constitutional game of Simon Says. To make his case, Judge Hudson was forced to dredge up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.

Judge Hudson had long since tipped his hand, so the actual result was not unexpected. What was unexpected was the remarkable weakness of his arguments. Perhaps the Court of Appeals for the Fourth Circuit will remind Judge Hudson that this is not 1934.