Yet Again — On Judge Hudson’s Plain Errors. . . .


On and off over the holidays, I found myself returning to read Judge Hudson’s plainly-partisan decision — the lone trial level decision which purports to invalidate one of the Health Care Reform law’s taxing provisions — a tax to be levied on people who do not obtain some minimal form of health insurance, after 2013.

It has more than intermittently gnawed at me that Judge Hudson conflated “enumerated” with “necessary and proper” — deciding, in essence, that where the first ends, the second must, also. In this case, that renders the power of “necessary and proper” a nullity — a clause without any meaning. It simply reads it out of the Constitution. That simply cannot be the right answer — as a matter of constitutional construction.

So, the below follows-up on the lone federal trial level decision finding portions of the insurance tax/mandate unconstitutional. See my prior analyses here and here. [Yes, this is an edited version of a New Years’ Day-morning hangover post. Heh.]

To that end, I decided to rework [in bold blue, and with strikeouts] a dissent authored by a very respected conservative Justice — simply to illustrate how wrongly Judge Hudson has read “necessary and proper“.

Thus, here’s that bit of Justice Sandra Day O’Connor’s dissent in Gonzales v. Raisch, 545 U.S. 1 (2005), then — with fill-ins and strike outs, to insert the insurance mandate into her analysis:

. . . .This case is essentially identical to readily distinguishable from Wickard v. Filburn, 317 U.S. 111 (1942).

To decide whether the Secretary could regulate local wheat farming, the Court looked to “the actual effects of the activity in question upon interstate commerce.” 317 U.S., at 120. Critically, the Court was able to consider “actual effects” because the parties had “stipulated a summary of the economics of the wheat industry.” Id., at 125. [In the health insurance mandate cases, the actual effects of 50 million uninsured are well-detailed in the Congressional Record, OMB studies and the briefs of the parties — about which there can be very little dispute.]

After reviewing in detail the picture of the industry provided in that summary, the Court explained that [the number of people uying insurance was the most variable factor in evenly spreading the daunting cost of health care. . .] consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent [could cost more than $2 trillion]. Id., at 127. With real numbers at hand, the Wickard Court could easily conclude that “a factor of such volume and variability as [trying to delay paying for one’s own INEVITABLE health care costs] home-consumed wheat would have a substantial influence on price and market conditions” nationwide. Id., at 128; see also id., at 128—129 (“This record leaves us in no doubt” about substantial effects).

The Court recognizes that “the record in the Wickard case itself established the causal connection between the [number of insured and the price of health care] production for local use and the national market” and argues that “we have before us findings by Congress to the same effect.” Ante, at 17 (emphasis added). . . .

Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 311 (1981) (Rehnquist, J., concurring in judgment). Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is right about what passes rationality review before us, then our decision in Morrison should have come out the other way. In that case, Congress had supplied numerous findings regarding the impact gender-motivated violence had on the national economy. 529 U.S., at 614; id., at 628—636 (Souter, J., dissenting) (chronicling findings). But, recognizing that “ ‘ “[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question we found Congress’ detailed findings inadequate. [There are quite detailed findings of Congress, right in the Congressional Record, regarding the mandate provision — the 2013 tax on people who refuse to buy insurance, as a point of significant reference. Inexplicably, Judge Hudson wholly ignored them — and that would be a critical factor, under Justice O’Connor’s analysis — of this taxing measure.] Id., at 614 (quoting Lopez, supra, at 557, n. 2, in turn quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)). . . .

If, as the Court claims, today’s decision does not break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women [containing health care costs], did not pass constitutional muster in Morrison, while the CSA’s abstract, unsubstantiated, generalized findings about controlled substances do? . . . .

— O’Connor, J. dissenting (Raich)

As ever, we shall see.

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