Who Decides?

Randy Barnett at the Volokh Conspiracy quotes Kurt Lash in analyzing the recent opinion of Judge Henry Hudson striking down the individual mandate within Obamacare. Critics of Hudson believe the judge did not take full account of the Necessary and Proper clause as a justification for the individual mandate. Lash believes critics are wrong to say that Hudson ignored the Necessary and Proper clause, not just because the government itself did not articulate that argument more strongly,  but because Necessary and Proper would have to be invoked in an almost blanket fashion to make the individual mandate valid. Hudson wrote, "[a]lthough the Necessary and Proper Clause vests Congress with broad authority to exercise means, which are not themselves an enumerated power, to implement legislation, it is not without limitation."

This is a key assertion in Hudson’s opinion—one that he makes in regard to both the Commerce Clause and the Necessary and Proper Clause. If upholding the individual insurance mandate required an interpretation of federal power that removed all serious limits on federal authority, then such an interpretation could not be correct under a Constitution of limited federal power. According to Hudson, “the same reasoning,” which supported the mandate “could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation.” Any interpretation of federal power that has no logical limit cannot be correct, regardless of the textual source of such power. As Hudson puts it, [the Necessary and Proper Clause] is not unbridled.” ...

In short, Judge Hudson did not ignore the Necessary and Proper Clause, nor did he reduce the Clause to a nullity. He simply concluded that assertions of unlimited power fall beyond any reasonable interpretation of congressional power, whatever its purported source.

Don Surber, reacting to the decision, agreed that the Necessary and Proper Clause had to have some limits in matter of individual mandates. Otherwise government could tell hippies to have haircuts.

Eric Holder and Kathleen Sebelius, reacting to the Hudson decision, made a public-policy rebuttal stressing the underlying reason for for passing Obamacare in the first place: the government needs to help people and no judge should really stand in the way of a beneficial intent. The suits challenging Obamacare -- the judges who uphold the suits -- are implicitly troublemakers, standing between the poor and the helpful state.

In March, New Hampshire preschool teacher Gail O'Brien, who was unable to obtain health insurance through her employer, was diagnosed with an aggressive form of lymphoma. Her subsequent applications for health insurance were rejected because of her condition. With each round of chemotherapy costing $16,000, she delayed treatment because she knew her savings wouldn't last. ...

That's what makes the recent lawsuits challenging the Affordable Care Act so troubling. ... As these lawsuits continue, Americans should be clear about what the opponents of reform are asking the courts to do. Striking down the individual responsibility provision means slamming the door on millions of Americans like Gail O'Brien, who've been locked out of our health insurance markets, and shifting more costs onto families who've acted responsibly.

Regarding the "hippie haircut" argument, Holder and Sebelius argue that government has long had the power to control bad economic choices.  That makes healthcare different from barbers because unregulated individual choices create unwelcome economic effects. "As two federal courts have already held, this unfair cost-shifting harms the marketplace. For decades, Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects, which is what the law does - it regulates how we pay for health care by ensuring that those who have insurance don't continue to pay for those who don't." And therein lies the justification for regulating this particular form of commerce.