Federal Judge Says Individual Mandate is Unconstitutional

On Monday of this week, J. Henry Hudson of the United States District Court for the Eastern District of Virginia became the first trial judge to find the Minimal Essential Coverage Provisions of the newly enacted Patient Protection and Affordable Care Act unconstitutional. Also held unconstitutional is the penalty for noncompliance with the mandate. The case is Cuccinelli v. Sebelius (PDF).

The mandate and penalty provisions are set to take effect in 2014. Hudson’s opinion is by no means the final word on the issue, but is significant in that it is at odds with previous decisions by other federal trial judges. The nub of the argument over the individual mandate is whether a person’s decision to not purchase health insurance coverage is within the meaning of “economic activity” as that term is used in Commerce Clause jurisprudence. The opinion concludes that “[n]either the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. [citation omitted] In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.”

The court severed the unconstitutional provisions from the rest of the Act, but declined to stop the government from proceeding with implementation of the mandate and penalty. Both sides acknowledge that the new federal health reform law will not work unless most have health coverage, but the court took the more conservative step of severing the provisions in question because it did not believe the available record supported invalidating the entire PPACA. The court also noted that the initial preparatory steps required to implement the law are fully reversible if the U.S. Supreme Court ultimately finds the provisions unconstitutional.

Also of interest is the expectation that incoming leaders of the 2011 North Carolina General Assembly have indicated a strong interest in reviewing the role of North Carolina state government in the implementation of PPACA.

The US Supreme Court will ultimately decide the constitutionality of PPACA. There are four cases raising constitutional issues, all filed immediately after PPACA was enacted, that are working their way through the federal courts. We will keep our members apprised of developments in this area.


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