Can Congress Force You to Be Healthy?
HENRY E. HUDSON, the federal judge in Virginia who ruled this week that the individual mandate provision of the new health care law is unconstitutional, has become the object of widespread derision. Judge Hudson explained that whatever else Congress might be able to do, it cannot force people to engage in a commercial activity, in this case buying an insurance policy. Critics contend that Judge Hudson has unduly restricted Congress’s authority to regulate interstate commerce, the principal basis on which the government defends the law. Some also claim that he ignored the “necessary and proper” clause of the Constitution, which allows Congress leeway to choose how to put in place national economic programs. Yet a closer reading shows that Judge Hudson’s analysis could prove irresistible to the Supreme Court and that there is a reasonable chance it will agree that the insurance mandate is invalid. For the last century the Supreme Court has struggled to define the lim...