What’s Surprising about the Virginia Ruling Striking the Individual Mandate?

By Mark Hall
In Health Law
December 13, 2010
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mark-a-hall-150x1501Most everyone expected district Judge Hudson in Richmond VA to strike the individual mandate as unconstitutional, so the outcome of today’s decision is hardly surprising.  What was uncertain is: 1) what remedy he would grant; and 2) how he would handle the government’s strongest argument, which is based on the “necessary and proper” clause.  On both points, he either punted or fumbled.  (See also here and here.)

For the remedy, the tough choice is whether to strike most or all of the Affordable Care Act, realizing that the Act lacks a severability provision and that Congress obviously never would have enacted it without an individual mandate.  Banning medical underwriting without an individual mandate will wreak havoc on the market for individual insurance, perhaps causing many or most insurers to withdraw, as they’ve already done in the market for child-only insurance.  Despite all of that, the judge severed and struck only the individual mandate, leaving to Congress or administrative agencies the task of avoiding the train wreck of potential market collapse.

Other courts might not be so cavalier (subtle pun intended, for those from UVA), even if they were inclined to agree on the merits.  But then they would have to strike most or all of the ACA — a much bolder move.  Both the state and the federal government agreed that severing the individual mandate was not the right move — conceding, in effect, that the mandate is inextricably intertwined with the ACA’s regulation of insurance.  That naturally leads to the next issue: whether the mandate is necessary and proper.

On that question, the Richmond court reasoned inscrutably (p. 24) that

“Because an individual’s personal decision to purchase–or decline to purchase–health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary.”

What??  I thought the whole point of the N&P clause was to expand powers beyond those enumerated.  If the Commerce Clause itself provided the power, then we wouldn’t need N&P; thus, the ONLY time we need N&P is when the power in question is beyond enumerated powers.

The court continued:

“This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. . . . The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.”

What!?  (I’m channeling Jon Stewart here).  Doesn’t this reason that the power in question is untethered because it’s not tethered to itself?  Shouldn’t we be looking to link to OTHER powers or objectives that ARE within the Commerce Clause?  The government’s clearly stated position, summarized by the court itself, is obviously that regulating how insurance is offered and sold is easily within the core of the commerce power.  That forms the anchor to which the individual mandate is tethered – a straightforward position to which the court never responded.

Other quirks:  Although the court nodded to the challengers’ burden of persuasion and the presumption in favor of constitutionality, it emphasized the lack of any “specifically articulated constitutional authority . . . to mandate the purchase of health insurance” (p. 20).  And although the case was about government powers rather than constitutionally-protected individual rights, the judge said (p. 37) that, “At its core this dispute is . . . about an individual’s right to choose” to be uninsured.

These parts of the opinion read to me as someone determined to strike the mandate regardless of the force of argument in the way.

[Read here Professor Hall’s prior articles in Health Reform Watch on the individual mandate : “Is it Unconstitutional to Mandate Health Insurance?” and “Are the Attorneys General’s Constitutional Claims Bogus.”]

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a contributor to Health Reform Watch. The author or editor of fifteen books, including Making Medical Spending Decisions (Oxford University Press), and Health Care Law and Ethics (Aspen), he is currently engaged in research in the areas of consumer-driven health care, doctor/patient trust, insurance regulation, and genetics. He has published scholarship in the law reviews at Berkeley, Chicago, Duke, Michigan, Pennsylvania, and Stanford, and his articles have been reprinted in a dozen casebooks and anthologies.

Professor Hall also teaches in the MBA program at the Babcock School and is on the research faculty at Wake Forest’s Medical School. He regularly consults with government officials, foundations and think tanks about health care public policy issues, and was recently awarded the American Society of Law, Medicine and Ethics distinguished teaching award.

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2 Responses to “What’s Surprising about the Virginia Ruling Striking the Individual Mandate?”

  1. […] if the mandate is so clearly necessary, why is it not “proper.”  The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology:  because the Commerce Clause does not permit it.  Here are critical […]

  2. […] legal commentators have taken issue with Judge Hudson’s treatment of the Necessary and Proper Clause (N&P). […]

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