“But despite seven decades of stretching by a Supreme Court eager to accommodate every congressional whim, the Amazing Elastic Commerce Clause is still not expansive enough to cover the unprecedented command that people purchase a product from a private company in exchange for the privilege of existing.”

“And stretched to its logical conclusion, the mandate’s policy implications are absurd. As one successful political opponent of the mandate once said: ‘If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house.’ That’s probably somewhat exaggerated, but it’s basically a fair point. And it was first made on the campaign trail by President Obama.”

This morning, Judge Henry E. Hudson of the Eastern District of Virginia presided over a summary judgment hearing for Virginia v. Sebelius. This case is the Constitutional challenge filed by Virginia Attorney General Ken Cuccinelli against ObamaCare, and shouldn’t be confused with the multi-state suit filed in Florida by over 20 Attorneys General. Both sides squared-off for just under three hours, and OCW was lucky enough to get a seat in the crowded courtroom.

Virginia’s case was argued by its Solicitor General, Duncan Getchell, Jr., who concentrated on two major arguments, both on the main theme that the individual mandate is a power grab by the federal government that is not authorized by the Constitution’s enumeration of powers. First, that the mandate is an “unprecedented’ and “unlimited” expansion of the Commerce Clause. Second, that the mandate cannot be justified as part of Congress’s taxing authority. Given the judge’s previous rulings and his questions and reactions at today’s hearing, it’s warranted to be cautiously optimistic that Judge Hudson is favorably disposed to the argument.

According to Getchell, the most unprecedented aspect of the mandate is that it regulates an economic status, not an economic activity. Previous federal precedent holds that Congress may regulate economic activities that influence interstate commerce, but there are no previous precedents which support ObamaCare’s mandate which forces people to pay a fine if they are uninsured. This argument was rebutted by Deputy Assistant US Attorney General Ian Gershegorn, who spoke on behalf of Secretary Sebelius. His position is that everyone uses health care, and the mandate forces people to buy insurance, which is just a commodity that changes the way individuals pay for their health care. Therefore, it is an activity and thus consistent with legal precedents.

On the issue of whether the mandate is a tax, the plaintiff’s argument was very strong. President Obama and other supporters of the law consistently and vigorously denied that the mandate was a tax. The law’s text itself insists that it is not a tax. When Gershegorn argued the opposite, Judge Hudson repeatedly interrupted him to ask whether ObamaCare supporters in Congress and the Administration were deliberately misleading the American people when they said the mandate wasn’t a tax. For a video of the President getting angry with George Stephanopolous about this issue, watch this interview.

The final issue was a very technical one, which involves the “severability” of the individual mandate. If the mandate is “severable,” then the law will withstand the striking down of the mandate. If not, then once one section of the bill is declared unconstitutional, then the whole law is unconstitutional. Laws typically have a severability clause, so this is not an issue, but ObamaCare was passed in such a rushed and reckless manner that it was overlooked. If the mandate is upheld, this point will be moot, but if it isn’t then this issue is crucial.

As the judge concluded the hearing, he said that he plans to make his decision by the end of the year, so keep watching the “Legal Challenges” section of ObamaCare Watch for the latest updates. For more information about this issue, visit our primer, which has material on the mandates, taxes, and legal challenges.

“In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.”

“A federal judge in Florida on Thursday ruled that challenges to the healthcare reform law’s individual mandate and its Medicaid expansion can proceed. The widely expected ruling does not mean that Florida Northern District Senior Judge Roger Vinson agrees that the law is unconstitutional, only that the arguments against it can’t be dismissed out of hand as the Obama administration had requested.”

“A federal judge on Thursday ruled that a lawsuit against the new health care law brought by 20 states led by Florida can go forward. In a 65-page ruling, the judge rejected the Obama administration’s attempt to have the suit thrown out, arguing that the states had a ‘plausible claim’ to challenge the law’s constitutionality. While U.S. District Court Judge Roger Vinson dismissed some of the states’ claims, he sided with them when it came to the central challenge to the law — that forcing individuals to purchase health insurance exceeds the government’s authority under the Commerce Clause.”

“Washington sees more than its share of power plays, and there were many on display during the year-long health care debate. But even by Washington standards, the secretary’s letter is highly unusual, and startling. It is not every day that a cabinet secretary issues a threat aimed at controlling the speech of an entire industry for plainly political reasons.”

“The law’s ambitious sweep has made it a target for those who see it as an unjustified expansion of government. Plaintiffs challenging the law include a variety of religious groups, the nation’s largest small-business trade association, and a who’s who of conservative legal activism.”

“Part I addresses the Commerce Clause and includes what I think is the most thorough discussion so far of why the mandate is not authorized by the Supreme Court’s broadest-ever Commerce Clause decision, Gonzales v. Raich (pp. 6–10). Part I also addresses many other relevant Commerce Clause decisions, including lower court cases. Part II covers the Tax Clause, emphasizing that the mandate is a regulatory penalty, not a tax as defined by Supreme Court precedent (pp. 16–21). Finally, Part III discusses the Necessary and Proper Clause. Among other things, it explains why the mandate runs afoul of the five part test established in the Supreme Court’s most recent Necessary and Proper Clause decision, United States v. Comstock, which I also discussed in detail in this article.”

“For the first time in American history, the federal government has attempted to ‘commandeer the people” by imposing on them an “economic mandate.” Such economic mandates cannot be justified by existing Supreme Court doctrines defining and limiting the powers of Congress. Upholding the power to impose economic mandates “would fundamentally alter the relationship of the federal government to the states and the people; nobody would ever again be able to claim plausibly that the Constitution limits federal power.”