A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Late Update: A number of readers have taken issue with my saying that “no one” took this idea seriously. It would probably be better to say that very few experts on constitutional law thought there was much chance that the law could be successfully challenged on constitutional grounds. Some chance, but not much. And I think that is unquestionably true. The mainstreaming of this argument over the last 12 to 18 months is little short of remarkable. One of the many signs of this — though not specifically tied to the Courts — is the way that more than a few Republican senators who were on the record supporting the mandate approach have now gone on record saying they believe the mandate approach in fact violates the constitution. Here’s a good run-down of the evolution from a piece we published back in March.


Josh Marshall is editor and publisher of