Once people had time to look past the headlines and actually read this week’s opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson’s reasoning. The key error, they claim, is when the judge wrote:
If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Calling the opinion “Amateur Hour,” Talking Points Memo writes:
Legal experts are attacking Judge Henry Hudson’s decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars — even ones sympathetic to the idea that the mandate is unconstitutional — prepared to see Hudson’s decision thrown out.
“I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error,” writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.
Kerr and others note that Hudson’s argument against Congress’ power to require people to purchase health insurance rests on a tautology. …
The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson’s argument wipes a key part of the Constitution out of existence. Kerr says Hudson “rendered [it] a nullity.”
Kerr’s co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson’s error doesn’t necessarily imply that the mandate is constitutional.
In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point “completely redundant.”
Ouch.
Steve Benen in the Washington Monthly wrote:
That’s a rather bizarre legal analysis.
“Bizarre” is one way to describe it. Perhaps another way would be “outcome-based judicial activism.”