I am glad to see that after hours of debate on Ricochet podcasts and blogging debates, Richard is starting to come around to the view that the constitutional weak spot of Obamacare is the Commerce Clause. And now the Virginia federal district court agrees. The Commerce Clause, as originally understood, would not have covered individual health care decisions. But it has been read to allow the government to prohibit the individual from making, buying, or selling products, of even the smallest amount, because they are part of an interstate market in the good. Here, Judge Hudson in a very abbreviated portion of his opinion (only 2 pages) interprets Supreme Court precedent not to reach cases where someone chooses to do nothing. However, it is hard to say, as the judge implies, that the Court has found the Commerce Clause does not reach this far. The Court has never really taken up such a case, because Congress has never tried to use its Commerce Clause powers to force people to buy something. Here, I agree with Richard, that it will be up to the Supreme Court (and probably Justice Anthony Kennedy's 5th vote), whether the Commerce Clause will allow Obamacare ultimately to survive -- not the most inspiring safeguard for constitutional government.
The decision also shows how far federal power has gone beyond its original constitutional boundaries. The Constitution, as originally written, was not intended to give the federal government power over what farmers decide to grow for their own consumption, or whether people could grow marijuana to use or give away, or whether to punish kids for carrying guns in school zones, or how to criminalize violence against women. It is undeniable that many of these issues demand government regulation of some kind; the question for constitutional law is which level of government has the authority to do it. The Supreme Court, however, has interpreted the Constitution to allow the federal government to regulate the first two (wheat and marijuana), but not the last two (guns, gender-motivated crime). This makes little sense; but to the extent there is a distinction, it is the one accepted by the federal judge: interstate commerce does not extend to non-economic activity, and it does not extend to passivity (i.e., the refusal to engage in commerce). In other words, the district judge found that the federal government cannot compel private individuals to engage in an activity it likes -- in this case, buying health insurance. Under our original constitutional scheme, this should have been an easy question, but because of the Supreme Court's steady dilution of the Constitution's limitations on the federal government, it is now a close one.