Peter Ferrara

Federal Court Judge Henry Hudson granted America an early Christmas present on December 13 by declaring the individual mandate in Obamacare unconstitutional.

The individual mandate is the provision that requires all individuals without employer-provided health insurance to purchase health insurance with all of the benefits and provisions as specified by the federal government. Hudson ruled that the federal government does not have the power to impose this under any of the enumerated powers of the Constitution.

In regard to federal authority to regulate interstate commerce under the Commerce Clause, Hudson held, “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” Obamacare’s individual mandate does precisely that by requiring an individual to buy health insurance..

Hudson also rejected President Obama’s lawyers’ attempt to argue that the individual mandate was constitutional as an exercise of Congress’s power to tax. In a famous exchange on national television with George Stephanopoulos in 2009, Mr. Obama vigorously denied that the individual mandate was in any sense a “tax.”

Judge Hudson relied on this and the statement in the legislation that its authority arises from the Commerce Clause to base his decision on “the unequivocal denials by the Executive and Legislative branches that the [individual mandate] was a tax.” As a legal matter, the individual mandate is transparently a regulation, not a tax. Judge Roger Vinson, hearing a suit in Florida by 20 states challenging the constitutionality of Obamacare, has already dismissed that claim on the same grounds.

However, even though the legislation does not include a severability clause, which traditionally provides that the law would remain in force if any of its provisions are declared invalid, Judge Hudson nevertheless declined to strike down the entire act.

This ruling is an enormous victory for Virginia Attorney General Ken Cuccinelli, who is building a tidal wave of momentum for political graduation to Governor or Senator soon. The American Civil Rights Union (ACRU), where I serve as General Counsel, filed a brief in this case in support of Cuccinelli and Virginia.


Peter Ferrara

Peter Ferrara is General Counsel for the American Civil Rights Union, a Senior Fellow at the Carleson Center for Public Policy and a senior fellow at the National Center for Policy Analysis.