Judge Henry Hudson, who ruled that the Affordable Care Act's individual mandate is unconstitutional this afternoon, has given Antonin Scalia his escape hatch, in terms of being able to rule against the Affordable Care Act without seemingly contradicting his conclusion in Gonzales v. Raich:
The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. This extends even to noneconomic activity closely connected to the intended market. But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended the Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the minimum essential coverage provision exceeds the Commerce Clause powers vested in Congress under Article I.
One of the big questions about the ACA is how Scalia will rule without contravening prior rulings, since his concurrence in Raich specifically affirmed the government's ability to regulate "noneconomic activity closely connected to the intended market," concluding that "where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective." Hudson writes later in the ruling that “the final word will undoubtedly reside with a higher court." Indeed -- Hudson has, in fact, pointed out how a key justice on that court can rule without contradicting himself, affirming Raich while still declaring the ACA unconstitutional.
Hudson, a George W. Bush appointee, is the first judge to rule the individual mandate unconstitutional -- it's been upheld twice before. But I suspect that because it affirms conservatives' argument that the ACA is unconstitutional, it'll get a great deal more attention. In terms of exposing the partisan nature of our supposedly independent judiciary, the conflict over the ACA may overshadow Bush v. Gore. As The New York Times notes, "Judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it."
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