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.”

Moments ago, a district judge in Virginia ruled that the Affordable Care Act’s individual requirement to purchase health care coverage violated the Commerce Clause of the Constitution, but did not issue an injunction baring enforcement of the provision. “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,” Judge Henry Hudson — a George W. Bush appointee — writes in the ruling, before adding, “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 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 1.

Because an individual’s personal decision to purchase — or decline to purchase — health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. …The Minimum Essential Coverage Provision is neither within the letter nor the spirit

The opinion represents a victory for Virginia Attorney General Ken Cuccinelli, but the decision stands alone within the broader context of existing court challenges. Since President Obama signed health reform into law on March 23, opponents have filed at least 20 separate suits against the measure. Federal judges have dismissed 14 of these challenges and at least two separate judges disagreed with Hudson’s interpretation and questioned the merit of the plaintiffs’ claim that compelling individuals to purchase insurance fell outside of the purview of the commerce clause. As Judge George Caram Steeh of the Eastern District of Michigan put it in October, forgoing insurance and putting off needed care only increases the costs of coverage and raises everyone’s premiums:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

To be sure, the legal fight is far from over. Hudson’s ruling will be appealed to the 4th Circuit U.S. Court of Appeals and may even end up before the Supreme Court. Appeals are also pending in other circuits and a federal judge will hear arguments Thursday in a challenge brought by a coalition of 20 state attorneys general led by Florida’s Bill McCollum.

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