Judge Hudson's flawed but restrained ruling on the health law

Monday, December 13, 2010; 10:16 PM

THERE IS ONE line in Monday's ruling by a federal judge invalidating a key part of the health-care law that no one would dispute: "The final word will undoubtedly reside with a higher court." Indeed, the Supreme Court will be the final arbiter of whether the individual mandate - the requirement that most individuals obtain health insurance or pay a penalty - exceeds Congress's constitutional authority. The mandate, along with other key pieces of the statute, is not set to take effect until 2014, but the earlier a definitive ruling on the law's constitutionality comes, the better off the country will be.

The decision, by U.S. District Judge Henry E. Hudson of Alexandria, upheld the state of Virginia's challenge to the health-care law. Splitting with two other federal district judges who have considered the issue, Judge Hudson found that the individual mandate could not be justified under either the power to regulate interstate commerce or the power to tax. It is certainly true, as Judge Hudson noted, that the Constitution's commerce clause has never been interpreted to extend to a decision not to purchase a product - in this case, health insurance. Yet health care presents an extraordinary, perhaps unique, circumstance that we believe puts the individual mandate within the realm of congressional powers. As the Obama administration argued in defending the law, "No person can guarantee that he will divorce himself entirely from the market for health-care services." Even inaction, in this situation, affects economic activity and therefore interstate commerce.

It is hard to have much sympathy for the administration's alternative argument: that the mandate is justified under the congressional power to levy taxes because the penalty for noncompliance is levied on income taxes and administered by the Internal Revenue Service. Administration officials, including President Obama, initially denied that the mandate constituted a tax, and the individual mandate section of the law was changed to use the word "penalty."

Importantly - and correctly - Judge Hudson, in invalidating the individual mandate, declined to bring down the rest of the law with it, as Virginia had asked. It is true that the individual mandate is key to making numerous other provisions of the law workable, such as the prohibition against denying insurance coverage or charging more to those with preexisting conditions. But Judge Hudson's approach was properly restrained. On the constitutionality of the individual mandate, he made what we consider the wrong call in a difficult case. But he did it in a thoughtful way that will be minimally disruptive to implementing the law and obtaining a final determination on its constitutionality.

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