Ken Connor

"In questions of power, then, let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution." Thomas Jefferson

On December 13, U.S. District Judge Henry Hudson issued a decision on the Commonwealth of Virginia's challenge to the constitutionality of Obamacare's "minimal essential coverage provision," sparking a flurry of controversy and commentary by declaring that neither the Interstate Commerce nor the General Welfare clauses of the Constitution permits Congress to mandate that Americans purchase health insurance.

As a conservative, of course I am delighted with the decision. As an attorney, I am impressed by Judge Hudson's admirable exercise of judicial restraint in crafting his opinion.

Perhaps to the chagrin of some conservatives who would have relished an ideologically-driven, politically-charged decision (and despite the wild accusations among some on the far left that this decision signals the first step towards a judicial imposition of a "libertarian utopia"), Judge Hudson doesn't second guess or venture an opinion about the wisdom or merits of the legislation. His analysis is a constitutional one, not a political or sociological one, and the question he considered is simple: Does the Constitution confer on the Congress the power to penalize individuals for not purchasing a particular good or service in the marketplace?

According to Kathleen Sebelius, Secretary of Health and Human Services and the defendant in the suit, the Congress is justified in requiring all Americans to purchase a minimum amount of health insurance coverage for two primary reasons. First, she asserts that health care is a commodity that everyone consumes at some point in their lives, and since there is a chance that they will not be able to pay for this care in full when the time inevitably comes, they should be made to contribute to the system. Secondly, Sebelius explains that the financial solvency of the ambitious and comprehensive legislation in question hinges upon universal participation. Secretary Sebelius also includes as part of her "general welfare" argument an assertion that the consequences of violating the mandate is not a penalty but a "tax" levied and collected by the IRS.

Ken Connor

Ken Connor is Chairman of the Center for a Just Society in Washington, DC.