Health Care Statute is Unconstitutional

by Professor Byron L. Warnken on December 27, 2010

Federal Judge Rules That Obama Administration’s Health Care Statute Is Unconstitutional

Federal Judge Henry Hudson, of the United States District Court for the Eastern District of Virginia, ruled that the President Obama’s federal health care statute is unconstitutional, in part, to the extent that it imposes the “minimum essential health coverage provision,” which requires every American to purchase health care insurance.

For Congress to enact any legislation that is binding on the states and their citizens, congressional power must be found in the United States Constitution.  Article I provides 17 enumerated powers, plus the “Necessary and Proper” Clause, which permits Congress to enact legislation necessary to carry out its 17 enumerated powers.  That congressional power most typically comes from the Commerce Clause, giving Congress the power to enact laws that affect interstate commerce.  On the other hand, if a federal law goes beyond the power of the Commerce Clause, it is unconstitutional because all power not given to Congress is reserved to the states under the Tenth Amendment.

In addressing the constitutional challenge in the health care statute, the District Court held that Congress exceeded its power under the Commerce Clause because it regulated “non-activity.”  Specifically, the Court ruled that Congress lacks the authority to regulate the refusal to purchase health insurance because failure to purchase is not an “economic activity” and not within the power of Congress under the Commerce Clause.

The case in the Eastern District of Virginia is not the only federal case involving a constitutional challenge to the health care statute.  Two other cases – one each in Michigan and Virginia – found the health care statute constitutional.  These cases are on appeal to the Sixth Circuit and Fourth Circuit.  A fourth case is being litigated in Florida, with 20 state attorneys general weighing in.  At least one of these four cases will go to the Supreme Court, but only after a ruling by a federal Circuit Court.  Thus, it will likely take at least two years for this issue to be addressed by the Supreme Court.

The Government argued that the refusal to buy health insurance is economic activity.  Its theory is that, because every American will require health care, it is essential that every American participate by “buying into” the health care market and spreading to everyone the cost of health insurance.  The Government argues that the “collective effect of refusal to purchase health insurance affects the national market.”  In finding the statute unconstitutional, Judge Hudson rejected the Government’s interpretation of the Commerce Clause as illogical.  He held that no court “has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”  He held that the health care statute went beyond the power of Congress to legislate because it limits “an individual’s right to choose to participate.”

The Court held the unconstitutional provision of the statute is “severable.”  This means that the judge held that the unconstitutional portion of the statute – the requirement to purchase health care insurance – can be severed from the rest of the statute, so long as that provision is not the whole reason Congress enacted the law.  This may mean that individuals with pre-existing conditions may, as now, be barred from the health care market.

The battle in the courts over health care has only just begun.

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