Essentially, from day one, politicos like Nancy Pelosi and numerous law professors have been saying about the constitutional challenge to the individual mandate: “Nothing to see here folks, move along.” Today Judge Henry Hudson ruled, “there is something to see here folks, let’s stop and evaluate carefully.” That is a big step.
Since before the Senate passed its version of health insurance reform, constitutional law professors have been quoted as saying that any constitutional challenge to the individual mandate, and other aspects of the bill, are “frivolous.” Indeed, some of the state attorneys general were severely criticized by local Democratic politicians and pundits for joining on to the lawsuit and thereby “wasting tax payer dollars.” A few weeks ago, for example, I spoke with several reporters and columnists from Michigan to defend the Michigan AG from this very charge.
While today’s ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous. This is an essential implication of today’s ruling because, had they been frivolous, the motion to dismiss would have been granted. So, no matter what the outcome, today’s ruling vindicates the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power.
And, as Ilya already noted, today’s decision also vindicates the contention that this claim of power is unprecedented:
The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.
This too is big.
Randy Barnett on “Judge Rules Constitutional Challenges to Individual Mandate are Serious” | The Volokh Commenter says:
[...] Posted on August 2, 2010 by volokhcommenter Randy’s post, with closed comments, is here. Your comments welcome below. This entry was posted in Uncategorized. Bookmark the permalink. [...]
August 2, 2010, 4:59 pmRandy Barnett Vindicated « Our Robed Masters says:
[...] that the constitutional challenges were serious enough to go ahead and hold a full trial. That, as Barnett says at Volokh Conspiracy, is a big [...]
August 2, 2010, 10:34 pmGood Times With ObamaCare: Federal Court keeps lawsuit moving, while Rep. Brady updates his chart. says:
[...] of yesterday’s ruling, as does WSJ’s Law Blog. The Volokh Conspiracy has two posts by Randy Barnett and Ilya Somin noting, among other things, that the ruling “vindicates the contention that [...]
August 3, 2010, 1:29 pmObamaCare: Unprecedented and Unconstitutional? says:
[...] Georgetown law professor Randy Barnett, a leading legal critic of ObamaCare, calls yesterday’s decision “a big step”: [...]
August 4, 2010, 7:02 amWe Are Living Through Constitutional History says:
[...] here and here) as well as blog posts on Volokh (see here, here, here, here, here, here, here, and here) advancing the dialogue that the mandate was unprecedented, and that no precedent supports this [...]
August 4, 2010, 2:57 pmAround the Mediverse: August 18, 2010 « The Notwithstanding Blog says:
[...] general equilibrium macroeconometric models! Beware surrogate endpoints in clinical research! Beware constitutional challenges to the PPACA! Beware Robin Hood… libertarian rebel? Beware overly alarmist bullet [...]
August 18, 2010, 11:55 pm