Monday, December 13, 2010

Activist judge invalidates individual mandate

A federal judge, Henry Hudson, has has invalidated the individual mandate ,a major part of the health care law. See this article from The New York Times for more details. The article discusses the decision at some length:

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

I don't agree with this decision. I see Hudson an activist judge who invalidated a law he disagreed with and found weak constitutional arguments to support his case. Now,I should I don't support the law on its merits; I don't think it was fair to require individuals to carry insurance without a public option. But a bad law--and this is a point a lot of people miss in this discussion--is not the same as an unconstitutional law. E.g. I oppose the death penalty, but don't think there's any evidence it's unconstitutional; I am generally pro-choice but think Roe v. Wade was constitutionally dubious. I just read a biography of William Brennan, a liberal activist judge who often made his own preferences part of the Constitution. This is what we're seeing here. Conservative judges can be judicial activists, too.

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