On a conference call with reporters hosted by the Center for American Progress, Washington and Lee law professor Timothy Jost specifically challenged Judge Henry Hudson’s interpretation of the commerce clause in today’s ruling striking down the individual mandate provision in the Affordable Care Act. Hudson argued that while “[t]he 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…[n]either the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”
Jost contended that “the commerce clause nowhere contains the word activity.” “Judge Hudson’s entire decision turns on his conclusion that Congress can only regulate economic activity,” he explained, noting that “what the commerce clause really turns on is economic decisions”:
JOST: The Judge has missed the point of the commerce clause, he also dismisses the Necessary and Proper clause argument, as if the Necessary and Commerce doesn’t exist independently of the Commerce Clause…I think this decision is very defective constitutionally and I believe it will be reversed by the appellate court, certainly by the Supreme Court.
Jost also stressed that this is a decision “solely to the minimum coverage requirement.” In his decision, Hudson severed this provision from any other portion of the law, dealing a defeat to those who hoped to use the ruling to repeal the law’s insurance regulations that require insurers to offer coverage to individuals with pre-existing conditions. “It does not strike down those provisions, I think the point we are making is that as a practical matter it will be very difficult to implement those provisions if healthy people remain outside of the insurance market,” Jost said.
He added that “health insurance is going to be very expensive in the United States if healthy people can stay out of the market and of course with with the new tax credits to finance health insurance, those costs will be passed on to the tax payers, or a lot of them are.” “In aggregate, we are talking about $43 billion in costs that are being transferred to taxpayers, that are being transferred to employers, that are being transferred to people who are responsible and are purchasing health insurance.”