Article 1, Section 8, Clause 3 of the Constitution, better known as the Commerce Clause, states that Congress has the power to “regulate Commerce…among the several States.” To supporters of health reform, the Commerce Clause is the Grinch that stole Obamacare. To opponents, the Commerce Clause might seem like a Sanity Clause (apologies to the Marx Brothers.) One thing now seems certain. Obamacare is on the fast track to the Supreme Court, where a ruling on the Commerce Clause could have far reaching implications for health reform and, frankly, for many other federal interventions into economic activity.
Virginia officials cited the Commerce Clause in arguing that the individual mandate was beyond the power of Congress. U.S. District Judge Henry Hudson agreed with the centrality of the Commerce Clause:
While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate and tax a citizen’s decision to participate in interstate commerce.
Judge Hudson sided with Virginia, stating that “no specifically articulated constitutional authority exists to mandate the purchase of health insurance.”
Judge Hudson does not reject health reform in its entirety. Although he speculates as to whether the bill would have been enacted without the exchange, he notes that the record in the case is insufficient for a final determination and thus he “severs (the individual mandate) with circumspection,” leaving the rest of the bill intact. In doing so he provides a road map to others attempting to strike down the entire legislation, provided they can find some evidence that votes hinged on the inclusion of the exchange.