Hudson’s inexplicable error

HUDSON’S INEXPLICABLE ERROR…. In the wake of yesterday’s court ruling on the individual mandate in the Affordable Care Act, federal district court Judge Henry Hudson has come under some scrutiny. The ruling wasn’t a surprise — Hudson is a conservative Bush nominee with a background as a Republican activist — but it raised eyebrows when we learned the judge owns part of a political operation that attacks the same health care law about which he was hearing arguments.

But putting Hudson’s background aside, it’s the reasoning of his decision itself that continues to be the point of an even larger controversy. The crux of his ruling came down to this main point:

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.

That’s a rather bizarre legal analysis.

The argument from the Obama administration is straightforward: the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. As such, the ACA fits comfortably within the confines of the Commerce Clause.

What about those who don’t want to buy insurance, but would have to under the mandate? As Kevin Drum noted, “[S]ince individuals get sick and receive medical care whether or not they have healthcare coverage (and whether or not they can pay for it), a decision not to buy health insurance has a significant effect on the healthcare market. Therefore, forcing people to buy healthcare coverage is a reasonable provision in a bill meant to regulate the healthcare market.”

But then there’s Hudson, who dismisses the very idea with a contention that, as Brian Beutler noted this morning, even conservatives consider “an elementary logical flaw.”

[Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy] notes that [Hudson’s rationale] is all wrong. 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.”

“In Hudson’s opinion he basically conflates the Commerce power and the Necessary and Proper power and says that each provision in a statute has to be looked at independently from every other provision, and each provision has to be independently authorized under the Commerce Clause,” Jost said. “And if it isn’t, the Necessary and Proper Clause doesn’t grant any more authority.”

It’s safe to assume the appeal will emphasize this point quite a bit.