U.S. Judge Henry Hudson Did Not Rule Obamacare Unconstitutional

It gave me great hope to read headlines such as “Judge Calls Health Law Unconstitutional” and similar titles, but to say that U.S. District Judge Henry Hudson of Virginia ruled the Affordable Care Act unconstitutional is simply not true.

Now, make no mistake. I am pleased to hear of Hudson’s ruling on the Minimum Essential Coverage Provision, as should be every American. In short, Virginia’s challenge to the constitutionality of a penalty to be imposed on any taxpayer refusing to purchase health insurance was upheld in a federal court today, and this is good news. Hudson, a George W. Bush appointee, has become “the first judge to rule against the law,” according to the Associated Press.

However, as lexington_concord writes over at RedState, it is essential for conservatives to realize that Hudson severed the Minimum Essential Coverage Provision from the larger Affordable Care Act, ruling only the “problematic” portion of the bill (namely, the penalty) unconstitutional.

Hudson’s argument is comprehensive and his reasoning sound. After reading through the ruling (it takes about an hour or so), one can be more or less satisfied with Hudson’s understanding of the Tenth Amendment and constitutional limits on the Commerce Clause and the General Welfare Clause.

Most importantly, Hudson ruled that the federal government does not have the power to impose a penalty to enforce any law that is not an enumerated power. Unfortunately for Health and Human Services Secretary Kathleen Sebelius, Hudson firmly believes that the Minimum Essential Coverage Provision “is neither within the letter nor the spirit of the Constitution.” Despite Congress’ attempt to categorize the penalty as a tax, thus bringing it under the legislature’s enumerated authority to tax, Hudson was not convinced. “The two words [tax v. penalty] are not interchangeable,” Hudson quotes, “and if the exaction [is] clearly a penalty, it cannot be converted into a tax by the simple expedient of calling it such.”

Amen.

Also importantly, Hudson is doubtful as to Congress’ authority to forcibly compel citizens to participate in a market by unwillingly purchasing a commodity. He writes, “A thorough survey of pertinent constitutional case law has yielded no reported decisions…extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product.” That’s right. Just as we thought, this is an unprecedented move by Congress, or as Hudson calls it, an extension of the Commerce Clause “well beyond its current high water mark.”

Despite these encouraging statements and Hudson’s sound reasoning, his severance of the Minimum Essential Coverage Provision from the larger health care bill is less than many had hoped for. In effect, though he has ruled the most controversial part of the bill, the “individual mandate,” unconstitutional, the massive government regulation, interference, and taxation also imposed by the Affordable Care Act remain in effect.

There is still plenty of work to be done, though the Virginia ruling is encouraging, to be sure. As one caller on Rush Limbaugh’s radio show said today, “salvation will come from the South.” As a native of Virginia, I am proud to hear that that appears to have been the case today. But the incompleteness of the Hudson ruling reminds us that this is a battle not yet won, and the fight for limited government and increased liberty will be long and tenacious. Thankfully, such signs of progress as these will sustain us until we achieve victory.