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Judicial Activism and the Debate On Proper Healthcare

The Patient Protection and Affordable Care Act -more commonly known as Obamacare- is set to take center stage.  Obamacare essentially forces all taxpaying Americans to purchase a private commodity, insurance, or face steep penalties enforced by the IRS.  Not only has this issue become one of constitutional rights, but has become a political issue.

The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The Commerce Clause authorizes Congress to regulate commerce in order to ensure that the flow of interstate commerce is free from local restraints imposed by various states.  When Congress deems an aspect of interstate commerce to be in need of supervision, it will enact legislation that must have some real and rational relation to the subject of regulation.  Congress may constitutionally provide for the point at which subjects of interstate commerce become subjects of state law and, therefore, state regulation.  Over the last 86 years, the Supreme Court has sought to define the limitations of the Commerce Clause’s power.  It is expected that the Supreme Court will once again be revisiting the question of where the government’s power to regulate commerce ends when it hears arguments in the cases below.

With judicial activism at an all time high, it is of utmost importance the judges in these cases follow the rule of law and not be swayed by political influences.  Thus far, only two judges in each of the above mentioned Obamacare suits have seemed to fairly weigh the constitutional issues, Florida’s Northern District Court Judge Roger Vinson and Virginia’s Eastern District Court Judge Henry E. Hudson.  Perhaps the best example of a judge following the rule of law rather than engaging in judicial activism comes from Judge Roger Vinson:  “[m]y review of the statute  is not to question or second guess the wisdom, motives, or methods of Congress. I am only charged with deciding if the Act is Constitutional.”[1]  In Virginia, Judge Henry E. Hudson wrote, “[a]s this Court previously cautioned, this case does not turn on the wisdom of Congress or the public policy implications ….  The Court's attention is focused solely on the constitutionality of the enactment.”[2]

Florida ex rel. Bondi v. U.S. Dept. of Health and Human Services.[3]  In Florida, the suit against Obamacare was brought by the Attorneys General and/or Governors of twenty-six states (the “state plaintiffs”); two private citizens (the “individual plaintiffs”); and the National Federation of Independent Business (“NFIB”) (collectively, the “plaintiffs”).[4]  The Florida case raised several issues, including a challenge to the constitutionality of the individual mandate.  Judge Vinson presided over this case and held that the failure to purchase health care insurance for oneself or one's family was not an “activity” that Congress could regulate under the Commerce Clause. Accordingly, the individual mandate provision was determined to be in violation of the text of the constitution and Obamacare was declared unconstitutional.[5]

Virginia ex rel. v. Sebelius.[6]  Attorney General of Virginia Ken Cuccinelli filed suit on behalf of the Commonwealth of Virginia and all the citizens who reside within.  In the Commonwealth's view, the failure – or refusal – of its citizens to elect to purchase health insurance is not “economic activity” and, therefore, not subject to federal regulation under the Commerce Clause.[7]  Mr. Cuccinelli also claimed that the individual mandate was in direct conflict with the Virginia Health Care Freedom Act, therefore, encroaching on the sovereignty of the Commonwealth and violating the Tenth Amendment to the Constitution.[8]  District Court Judge Henry Hudson presided over this case and held that the Virginia Health Care Freedom Act was a lawfully-enacted part of the statutes of Virginia and its mere existence was sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.[9]  In his ruling, Judge Hudson stated, “[w]hile this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate - and tax - a citizen's decision not to participate in interstate commerce.  Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue.  No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce.”[10]

 


[1] Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120, 1127 (N.D. Fla. 2010)

[2] Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 771 (E.D. Va. 2010)

[3] Florida ex rel. Bondi v. U.S. Dept. of Health and Human Services., WL 285683 (N.D. Fla. 2011).

[4] Florida ex rel. Bondi v. U.S. Dept. of Health & Human Services, 3:10-CV-91-RV EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011) order clarified, 3:10-CV-91-RV/EMT, 2011 WL 723117 (N.D. Fla. Mar. 3, 2011)

[5] Florida ex rel. Bondi v. U.S. Dept. of Health & Human Services, 3:10-CV-91-RV EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011) order clarified, 3:10-CV-91-RV/EMT, 2011 WL 723117 (N.D. Fla. Mar. 3, 2011)

[6] Virginia ex rel. v. Sebelius, 702 F.Supp.2d 598 (E.D. Va. 2010).

[7] Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 601 (E.D. Va. 2010)

[8] Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 601 (E.D. Va. 2010)

[9] Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605-06 (E.D. Va. 2010)

[10] Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 615 (E.D. Va. 2010)