The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the Commerce Clause referred to as “the Foreign Commerce Clause“, “the Interstate Commerce Clause“, and “the Indian Commerce Clause“, each of which refers to a different application of the same sentence in the Constitution.

Dispute exists as to the range of powers granted to Congress by the Commerce Clause. As noted below, the clause is often paired with the Necessary and Proper Clause, the combination used to take a broad, expansive perspective of these powers. Many strict constructionists deny that this is the proper application of the Commerce Clause because it refers specifically to “the foregoing Powers“.


VICTORY – Follow up and Discussion of Ruling

As I told you earlier today, Virginia won the first round of the constitutional fight over the federal health care law. I also told you I’d get back to you with more details later in the day, and I’m keeping my promise.

I will tell you up front that I will also go into still more detail later this week – when time allows.

Arguments and Outcomes

There were two basic arguments in this case.

First, Virginia argued that the individual mandate was beyond the power of Congress and the President to impose under the Constitution. Specifically, Congress claimed that their regulatory power under the Commerce Clause allowed them to order you to buy their government-approved health insurance, even if you decide not to buy health insurance.

The judge ruled that the federal government does not have the power to compel you to buy health insurance as part of its attempt to regulate the entire field of health care and health insurance. Thus, Virginia won this argument.

Second, the federal government advanced a ‘fallback’ argument in case it lost on its commerce clause argument. The feds’ fallback argument was that the financial penalty you have to pay if you don’t buy the government mandated health insurance is a tax.

This may sound like an odd argument from a political standpoint – usually they say everything is NOT a tax (in fact, they argued the penalty was not a tax while they were trying to get the bill passed); however, they changed position after the bill became law to try and save the bill. What they were trying to do was to get the courts to agree that because the penalty would presumably raise some revenue, it was therefore a ‘tax’ under the taxing and spending for the General Welfare Clause of the Constitution.

No judge in the country has bought this argument, and Judge Hudson was no exception. He ruled that the taxing power of Congress does not save the bill, because the penalty for not buying the mandated health insurance is not a tax.

The federal government only had to win on either of these two arguments, while Virginia needed to win both to prevail, and we won both!

What’s Next?

Certainly the federal government will appeal their loss in the district court to the 4th circuit court of appeals within the next 30 days. And whichever side loses in the 4th circuit will certainly appeal to the Supreme Court. And no one has any serious doubts that ultimately the constitutionality of the individual mandate will be decided by the U.S. Supreme Court.

That could take approximately (very rough approximation) two years. We are discussing with the Department of Justice accelerating the case, and those discussions have been very cordial thus far. More on that later.


Today is a great day for the Constitution. Today the Constitution has been protected from the federal government, and remember, an important reason for the constitution in the first place was to limit the power of the federal government.

Today is also a day of a small degree of vindication. When we first filed suit, the screeching of the liberals was deafening. Everything from accusing us of playing politics instead of practicing law, to filing what they called a ‘frivolous’ lawsuit.

I want you to know, that our team makes decisions based on the Constitution and the laws. Period. We deal with the consequences of our decisions separately, but first and foremost we have been and will continue to be true to the Constitution and laws of the United States and Virginia, regardless of whether it’s easy or hard in any particular case.

Thank you for your continuing support!

Ken Cuccinelli, II
Attorney General of Virginia

Judge Calls Health Law Unconstitutional


RICHMOND, Va.—A federal judge ruled Monday that a central plank of the health law violates the Constitution, dealing the biggest setback yet to the Obama administration’s signature legislative accomplishment.

In a 42-page ruling, U.S. District Judge Henry E. Hudson said the law’s requirement that most Americans carry insurance or pay a penalty “exceeds the constitutional boundaries of congressional power.”

The lawsuit, brought by Virginia’s attorney general, Republican Ken Cuccinelli, is the first court ruling against the law since President Barack Obama signed it in March. More than 20 federal lawsuits have been filed against the overhaul, and judges in two of those cases ruled in favor of the Obama administration.

While Monday’s decision creates a headache for the law’s supporters, it doesn’t mean that states or the federal government must stop implementing the law.

Judge Hudson didn’t grant the plaintiffs’ request for an immediate nationwide injunction against the entire law or against the requirement that most Americans carry insurance. That requirement begins in 2014.

The judge also said that his ruling only strikes down the requirement to carry insurance, known as the individual mandate, and the provisions of the law that are directly dependent on it.

The Supreme Court is ultimately expected to settle the issue after the Virginia case and other similar ones wind their way though the courts….

A federal district judge on Monday sided with the state of Virginia in its challenge to the health law, saying Congress exceeded its “constitutional boundaries” when it required most Americans to carry health insurance or pay a fine.

Judge Henry E. Hudson of the Eastern District of Virginia said the provision in the bill, known as the individual mandate, “would invite unbridled exercise of federal police powers.” Below, highlights from his 42-page ruling. (See the full document.)

* * *

“A thorough survey of pertinent constitutional case law has 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, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers.”

* * *

“[S]everal operative elements are commonly challenged in Commerce Clause decisions. First, to survive a constitutional challenge, the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. … In her argument, the Secretary [of the Department of Health and Human Services, Kathleen Sebelius] urges an expansive interpretation of the concept of activity. She posits that every individual in the United States will require health care at some point in their lifetime, if not today, perhaps even next week or next year… This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.”

* * *

“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health coverage — it’s about an individual’s right to choose to participate.”

* * *

“This Court is . . . unpersuaded that [the individual mandate] is a bona fide revenue-raising measure enacted under the taxing power of Congress. . . . No plausible argument can be made that it has ‘the purpose of supporting the Government.'”

* * *

“Importantly, it is not the effect on individuals that is presently at issue — it is the authority of Congress to compel anyone to purchase health insurance. An enactment that exceeds the power of Congress to adopt adversely affects everyone in every application.”

* * *

“Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers.”

* * *

“The shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms ‘penalty’ and ‘tax’ are synonymous.”

* * *

“Having found a portion of the Act to be invalid. . . the Court’s next task is to determine whether this Section is severable from the balance of the enactment. … The most recent guidance on the permissible scope of severance is found in Free Enterprise Fund v. Public Co. Accounting Oversight Board. ‘Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any ‘problematic portions while leaving the remainder intact.’ … [W]ithout the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently. Therefore, this Court will hew closely to the time-honored rule to sever with circumspection . . . . Accordingly, this Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501.”

Henry E. Hudson (born 1947) is a United States federal judge.

Born in Washington, D.C., Hudson received a B.A. from American University in 1969 and a J.D. from American University Washington College of Law in 1974. He was an Assistant Commonwealth’s Attorney in Arlington County, Virginia from 1974 to 1979. He was an Assistant United States Attorney for the Eastern District of Virginia from 1978 to 1979. He was in private practice in 1979, from 1991 to 1992, and from 1994 to 1998. He was Commonwealth’s Attorney for Arlington County, Virginia from 1980 to 1986. He was the U.S. attorney for the Eastern District of Virginia from 1986 to 1991. Hudson was Director of the United States Marshals Service, a division of the U.S. Department of Justice, from 1992 to 1993, under President George H.W. Bush. He was a circuit court judge on Virginia’s Nineteenth Judicial Circuit Court (Fairfax County, Virginia) from 1998 to 2002.

President George W. Bush nominated Hudson on January 23, 2002, to a new seat on the United States District Court for the Eastern District of Virginia created by 114 Stat. 2762. The United States Senate confirmed the nomination on August 1, 2002, and Hudson received his commission on August 2, 2002.

Hudson ruled against the Obama administration’s health care reform law, saying that the individual mandate provision of the law exceeded Congress’ powers under the Commerce Clause of the Constitution. According to the Associated Press, Hudson was “the first judge to rule against the law.”


UPDATED Link:  (HotAir) Judge in 20-state ObamaCare case expresses skepticism over mandate

Related Previous Posts:

ObamaCare Summer Talking Points Leaked…

ObamaCare: Socialist Government Boards/Commissions List

Repeal ObamaCare: We The People ‘Go For It’

Hidden ObamaCare CLASS Act Provision: $150 – $240 Per Month To Feed, Wash, And Dress Me…

ObamaCare: All-American Socialism

ObamaCare Vote: The Calm Before The Storm

Congressional Budget Office (CBO) / Joint Committee on Taxation (JCT) Preliminary Estimate (H.R. 4872 – Reconciliation Act 2010)

Obamacare Christmas Special: Payoffs, Kickbacks, And Sweetheart Deals

CBO-JCT Updated Estimate: H.R. 3962 (Affordable Health Care for America Act)

PelosiCare: This Magic Moment…The Losers Try Again!

Obamacare: Shameful Backroom Deals And Unconstitutional?

CBO/JCT Preliminary Analysis: America’s Healthy Future Act of 2009 (Baucus Plan)

The Official White House “Lab Coat” Caper (Pravda Edition)

end – 😉