In it, but not of it. TPM DC
"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.
Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology.
The key portion of the ruling reads:
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.
Kerr notes that this 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."
As a result of this error, Hudson never engages the key question in the case: whether the individual mandate is a reasonable way for Congress to implement regulations within its purview.
"Given that existing Supreme Court case law gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case," Kerr writes. "That is unfortunate, I think."
[Ed. note: This post was edited after publication]