Why Judge Hudson Was Wrong on Severability of the Individual Mandate

Published December 21, 2010

Monday’s ruling by a Virginia federal judge, holding the individual mandate in the Obamacare bill is unconstitutional and exceeds Congressional authority under the interstate commerce clause of the U.S.

Constitution, struck a blow for freedom, as Virginia Attorney General Ken Cuccinelli correctly put it.

But Judge Henry E. Hudson erred in not voiding the entire 2,700 page health care bill.

Judge Hudson ruled the portion of the bill requiring everyone to buy health insurance—known as the individual mandate—violates the Interstate Commerce Clause of the U.S. Constitution.  A citizen’s decision whether to buy personal health insurance, the judge ruled, is a passive individual and personal activity, not interstate economic or commercial activity subject to federal regulation. No case has ever extended the Commerce Claus this far, he wrote.

Specifically: “The unchecked expansion of congressional power to the limits suggested by the … [individual mandate] would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it’s about an individual’s right to choose to participate.”

Having made that ruling, the next issue before the judge was whether the constitutional principle invalidated only that part of the 2,700 page bill or the whole thing.

Judge Hudson correctly noted the general judicial rule allows the severing of the portion of a bill found unconstitutional and leaving the remainder intact. This decision is to be made, he wrote in his opinion, by determining legislative intent as manifested in the Congressional debate on the bill. As the Supreme Court put it in a 2006 case, the question is: “Would the legislature have preferred what is left of its statute to no statute at all?”

The Obama administration, as usual, tried to have it both ways. On one hand, in arguing the individual mandate is constitutional, the administration wrapped itself in a blanket of pathos: the individual mandate is the “linchpin” of the health care bill and, without it, millions of Americans will suffer. The administration said “the minimum coverage provision is necessary to make the other regulations in the Act effective.” On the other hand, in arguing the individual mandate should be severed, leaving the balance of the statute in effect, it urged the judge to sever this “necessary” provision.

Citing the “linchpin” argument, the Commonwealth of Virginia argued severance should be denied and the entire Obamacare act declared invalid.

Judge Hudson found it difficult to determine Congress’s legislative intent “given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve [2009] vote.” Thus, he said he could only speculate on the intent of Congress. “[W]ithout the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently.” Therefore, he explained, he ruled in favor of severability.

Regardless of whether one agrees with his ruling, Judge Hudson’s opinion must be recognized as an outstanding one: he manages to discuss complicated constitutional issues in scholarly yet crystal-clear language that pierces to the heart of the issues.

But he went wrong on severability.

When the record is inadequate concerning a particular issue, judges typically decline to rule on that issue. That is what Judge Hudson should have done here. Instead, he effectively found Congress intended severability without a record showing that was its intent.

The Obama administration is appealing Judge Hudson’s ruling to the 4th Circuit U.S. Court of Appeals on the issue of the constitutionality of the individual mandate. The Commonwealth of Virginia should consider filing a cross-appeal on the severability issue.

Maureen Martin ([email protected]), an attorney, is senior fellow for legal affairs at The Heartland Institute.