Legal Commentary

District Court Judge Refuses to Dismiss AG?s Challenge to the Individual Mandate

By Randy Barnett

Because I leave for my lecture in less than an hour, I cannot do full blog post on the decision. But here is a statement that will appear on healthcarelawsuits.org.

In its ?talking points? today, the White House claims that the 21 state attorney?s general challenging the constitutionality of the health care reform act are ?opportunistic politicians . . . wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.? Today?s ruling by a federal district court judge officially repudiated this claim. 

In denying the government?s motion to dismiss the challenge to the individual health insurance mandate, Judge Vinson ruled that ?the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.? This is because of the unprecedented nature of the government?s claim of power. As Judge Vinson explained, all previous commerce clause cases involved the regulation of ?voluntary undertaking[s]? or activity. But ?in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.? 

This decision now join?s District Judge Henry Hudson?s ruling in Virgina refusing to dismiss the challenge to the individual mandate. In both Virginia and Florida we now move to a decision on the merits. Given how well both judges understood the constitutional novelty of imposing economic mandates on the people, there is reason to be cautiously optimistic that they will find the individual insurance mandate to be unconstitutional. But, however the district courts rule on this case, their reception of the arguments made by the state attorneys general foretell that the ultimate decision will be made by the U.S. Supreme Court.

Of course, Judge Vinson also, quite correctly wrote this: ?Of course, to say that something is ?novel? and ?unprecedented? does not necessarily mean that it is ?unconstitutional? and ?improper.? There may be a first time for anything.? So stay tuned. Next up: oral argument on the motion for summary judgment in the Virginia AG lawsuit, followed by briefing the motion for summary judgment in Florida.

Full post as published by The Volokh Conspiracy on October 14, 2010 (boomark / email).