Healthcare Under the Knife in Virginia

University of Chicago law professor Richard Epstein explains why ObamaCare is Now on the Ropes:

The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.

The key successful move for Virginia was that it found a way to sidestep the well known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.

At this point, no District Court judge dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.

Orin Kerr of The Volokh Conspiracy sees a Significant Error in Judge Hudson’s Opinion

Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson’s error leads him to assume away as a matter of “logic” what is the major question in the case. That is unfortunate, I think.

It's inevitable that this will end up at the Supreme Court. Below is Judge Hudson's opinion:
Virginia AG Cuccinelli v. Kathleen Sebelius Department of Health and Human Services

Related articles

• Forrest Cox: Obamacare Is Now on the Ropes (nationalreview.com)
• Obamacare's Individual Mandate Exceeds Congress' Commerce Clause Power (redstate.com)
• The Crucial Role of Choice in Henry Hudson's Opinion (reason.com)
• Va. court finds right to not buy health insurance (politico.com)