Somin: Ruling on Virginia Health Care Challenge a Victory for Opponents

A federal district court decision refusing to dismiss the Commonwealth of Virginia's lawsuit challenging the constitutionality of the recently enacted health care plan is a step forward for opponents of the plan says Professor Ilya Somin.

Virginia's suit focuses on the individual mandate that most Americans purchase government-approved health insurance by 2014 or be fined.

"The federal government claims that Congress has the power to impose it under the Commerce Clause, the Tax Clause, and the Necessary and Proper Clause," says Somin. But he warns, "All three arguments have serious flaws."

Judge Henry Hudson's ruling in federal district court is a victory, says Somin, for those who believe the individual mandate is unconstitutional.

"It makes it difficult to argue that the lawsuits against the mandate are mere political grandstanding with no basis in serious legal argument," he maintains.

Two cheers for federal court's Virginia health care suit decision, Washington Examiner, August 5, 2010. By Ilya Somin.

"The Commerce Clause gives Congress authority to regulate' Commerce . . . among the several states.' But the individual mandate regulates that which is neither commercial nor interstate. A combination of state and federal law makes it illegal to purchase health insurance across state lines. At most, what we have here is commerce within a single state, not interstate commerce.

"Moreover, the object of the mandate isn’t even commerce at all. Instead of regulating preexisting commerce, the bill forces people to engage in commercial transactions even if they had no previous involvement in interstate commerce in health insurance at all.

"A series of deeply flawed Supreme Court decisions have expanded Congress’ Commerce Clause authority well beyond what the text of the Constitution permits. These cases allow the federal government to regulate almost any 'economic activity.'

"But, as Judge Hudson points out, even they do not give Congress the power to regulate mere inactivity - in this case, the simple fact of being a U.S. resident without health insurance."