I applaud the recent decision by United States District Judge Henry E. Hudson declaring the individual mandate provision of the Obama/Casey health law unconstitutional. This decision takes a necessary and proper step away from a liberal interpretation of the Commerce Clause that has permitted the federal government to regulate too much of our lives already.
Since President Franklin Delano Roosevelt reshaped the United States Supreme Court starting in the late 1930s, liberal justices have expanded the Commerce Clause to its breaking point by finding just about every sort of activity as interstate commerce and thus subject to the regulatory power of the federal government. Judge Hudson’s decision, however, strikes at the heart of this overly elastic interpretation of the Commerce Clause.
The individual mandate provision of the Obama/Casey health law is one of the most unprecedented extensions of Congressional power since the New Deal. Under the Obama/Casey health law free citizens who choose not to have health insurance will be punished by the government, fined and treated as law breakers. Never before in the history of this country has Congress compelled an individual to purchase a good or service solely as a condition of being a citizen.
The Obama Justice Department based its theory – that the decision not to purchase health insurance is activity that substantially affects interstate commerce – on the watershed case of the New Deal Supreme Court, Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82 (1942). In Wickard, Franklin Delano Roosevelt’s Court held the growing of wheat by a farmer for the purpose of feeding his family and livestock was economic activity substantially affecting interstate commerce. The Wickard case set forth the most elastic interpretation of the Commerce Clause in the history of the country – and is partly responsible for the overreaching federal government we have today.
The best part of Judge Hudson’s recent decision is he disagreed with the Obama Justice Department’s argument that the Commerce Clause permits the federal government to regulate the decision by a citizen not to act. If Judge Hudson had agreed with the Obama Justice Department that inactivity is activity, then restrictions on Congressional power to regulate through the Commerce Clause, which have already been substantially weakened by Wickard and other liberal court decisions, would have been eviscerated to the point of extinction.
I am disappointed that Judge Hudson did not find the entire Obama/Casey health law unconstitutional because the now invalidated individual mandate provision is, according to the Obama Justice Department, the linchpin that holds the entire legislative scheme together. I would have preferred to see Judge Hudson invalidate the entire Obama/Casey law as an unconstitutional overreach by the federal government.
Although the ruling on the constitutionality of all other parts of the Obama/Casey health law will be left for another day, the invalidation of the individual mandate provision is cause for celebration by all Americans who believe in a limited Constitutional government. I am running for the United States Senate to help restore our country to the Constitutional Republic created and bestowed upon us by our Founding Fathers. Judge Hudson’s decision is a step in that direction.
Marc Scaringi is a lawyer and owner of the Harrisburg-based law firm, Scaringi & Scaringi, P.C. and is also a candidate for the Republican nomination to the United States Senate in 2012.