For those who are opposed to Obamacare and mandated health-care coverage today was a big day for us. A federal district court in Virginia ruled that the individual mandate portion of Obamacare does indeed violate the Constitution and it is too much of an expansion of the Commerce Clause. You can read the full ruling here if you have the mind.

I’ve had some time to digest the ruling and here are some of my initial thoughts. First of all let’s remember that this is a district court, so this case is going to be appealed and then the Supreme Court almost has to hear it because now there is a circuit split regarding this issue and legislation.

Most important to conservatives though, the judge makes some interesting points here in limiting the power that Congress can wield under the Commerce Clause. More specifically he argues that the bill would give Congressional power without “logical limitation”. Just in the way of background, Supreme Court Commerce Clause jurisprudence has evolved significantly since the founding. The “modern” Commerce Clause was expanded significantly during the Great Depression in a case called Wickard. In the Wickard case the plaintiff was a farmer who raised his own crops and did not engage in Interstate Commerce at all. The Court ruled that if everyone engaged in a similar type of economic activity the aggregate effect of those actions would have an impact on Interstate Commerce. Ridiculous I know, but that is the logic of the left.

This has pretty much been the interpretation of the Commerce Clause since and has basically given Congress unlimited power to do just about anything they want, although the Lopez opinion walked that back a bit, but we’ll see how Lopez is more like Virginia then Wickard is in a moment. So, how do we distinguish Wickard from Virginia? I think the best argument (and the argument made by the judge in this case) is that Virginia and Wickard are different because in Wickard and even Raich, the individuals in those cases became subject to federal regulation because they took affirmative actions, e.g. growing wheat (or marijuana in Raich). The court states:

In both cases [Wickard and Raich], the activity under review was the product of a self-directed affirmative move . . . This self-initiated change of position voluntarily placed the subject within the stream of commerce. Absent that step, governmental regulation could have been avoided.”

This seems right to me. My father, who teaches Constitutional Law and knows a bit about this stuff, wonders how Kennedy and even Scalia might go on in this case. In fact, Scalia even sided with the majority in Raich, ruling that the regulation of home growers of marijuana does have an economic impact and thus regulated by the Commerce Clause. My father wonders how Scalia can break against this precedent since it seemingly comes to opposite conclusion as the one in Raich. However, I think that Wickard, Raich, Lopez and Virginia can all be squared quite easily.

Both Wickard and Raich centered on the use of some intrinsic, fungible commodity. In fact, in Raich the majority actually states that “Economics’ refers to the production, distribution, and consumption of commodities.” So, the failure to buy something such as health care insurance is not “economic”. More broadly, the distinction is between a prohibition and a mandate, which is recognized in many other constitutional areas.

In sum, Congress has the authority and ability to regulate Interstate Commerce when someone commits some affirmative action and places themselves in the stream of Interstate Commerce. However, Congress does not have the authority to mandate that citizens commit some positive action (eg purchase health insurance) even if the bill has some economic characterization itself.