The Virginia federal district court judge who ruled yesterday that the individual mandate in the health care bill is unconstitutional is catching a lot of flack -- and not just for having a financial interest in an anti-health care reform consulting firm.
Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.
"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," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.
Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.
The key portion of the ruling reads:
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.
Kerr notes that this is all wrong. The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered
a nullity."
The rest of the article can be found here...http://tpmdc.talkingpointsmemo.com/2010/12/amateur-hour-va-judge-makes-elementary-error-in-health-care-ruling.php
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