Judge Henry E. Hudson... wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.It sounds as though he's adopted the reasoning that we've expected a judge striking down the provision to use.
The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”
The opinion by Judge Hudson, who has a long history in Republican politics in northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it.I like the way the NYT report doesn't say it's Hudson who decided according to political preference. There's just a "pattern" here, and the judges on both sides of the issue have followed the pattern. Maybe some, none, or all are following politics. That's the best way to report it.
ADDED: From the opinion (citations omitted), here's the key conclusion about the Commerce Clause:
The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. This even extends to noneconomic activity closely connected to the intended market. But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended the Commerce Clause powers to compel and individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.A footnote at that point says: "The collective effect of an aggregate of such inactivity still falls short of the constitutional mark.
But what about the Necessary and Proper Clause? Orin Kerr detects an "obvious and quite significant error":
Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause... does not expand Congress’s power beyond the Commerce Clause itself...
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.Judge Hudson does not cite any authority for this conclusion... The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.