Somin: Mandate Challenge Could Prevail

Legal challenges to the Obama health care law adopted earlier this year may have a chance of real victory, says Professor Ilya Somin, despite the administration's claim that Congress has the power to impose the mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution.

The suits filed by 21 states and several private groups focus primarily on challenges to the law's "individual mandate," which requires most Americans to purchase government-approved health insurance by 2014 or face a fine.

Judges currently considering the cases before them in several states, including Virginia, have differed in their interpretations of the law's constitutionality. It seems certain, Somin says, that appeals will go the the federal courts of appeal and, ultimately, the Supreme Court.

"The anti-mandate plaintiffs still face an uphill struggle," believes Somin. "Courts are rarely willing to strike down a law that is a centerpiece for the political agenda of the president and his party. Nonetheless, it is increasingly clear that lawsuits are far from 'frivolous' and have a real chance to prevail."

Mandate Challenge Could Prevail, Richmond Times-Dispatch, November 7, 2010. By Ilya Somin.

"The judges considering the Florida and Virginia cases have both issued rulings rejecting the federal government's motions to dismiss the suits and indicating that the mandate can't be upheld based on current Supreme Court precedent. By contrast, Michigan district Judge George Caram Steeh wrote a decision concluding that the mandate is constitutional. But even he agreed that the case raises an 'issue of first impression.'

"In the most recent of the three rulings, Florida federal District Court Judge Roger Vinson wrote that the government's claim that the mandate is clearly authorized by existing Supreme Court precedent is 'not even a close call.' He points out that '[t]he power that the individual mandate seeks to harness is simply without prior precedent,' because no previous Supreme Court decision ever authorized Congress to force ordinary citizens to buy products they did not want.

"An August ruling in the Virginia case by federal District Judge Henry Hudson reached the same conclusion. As Judge Hudson points out, '[n]o reported case from any federal appellate court has ever ruled that Congress' powers 'include the regulation of a person's decision not to purchase a product.'"