On one side lies federal tyranny. On the other side is freedom. Yesterday, federal district Judge Henry E. Hudson favored freedom by keeping alive Virginia’s suit to invalidate the law that created Obamacare.
The major substantive thrust of the lawsuit, filed by Virginia Attorney General Kenneth T. Cuccinelli, is that while Congress can regulate actual economic activity in which citizens choose to participate, it cannot force citizens to partake in economic activity by mandating the purchase of health insurance. In short, there are limits on federal power.
By sheer happenstance, the Drudge Report earlier in the day highlighted a video of Rep. Pete Stark, California Democrat, telling a recent town meeting, “The federal government can do most anything in this country.” Against this notion, Judge Hudson ruled as a preliminary judgment that Virginia’s lawsuit “advances a plausible claim with an arguable legal basis.” Why? Because “never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far.” As the judge concluded, “no reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product.”
In short, Judge Hudson is insisting that there are, indeed, boundaries beyond which federal power does not “extend.” As Mr. Cuccinelli explained yesterday, “This is not [just] about health care but about liberty and the outer reaches of the power of the federal government.”
The Obama administration recognizes no real limits. It had moved on four different grounds to dismiss Virginia’s lawsuit before even reaching a trial on the merits. “Virginia had to prevail on all four elements to survive the federal government’s motion to dismiss,” Mr. Cuccinelli said. “The federal government only has to successfully hang its hat on one constitutional power.” Yet the motion to dismiss failed on all four counts, and the case continues. For the Obama administration to go oh-for-four at the preliminary stage is a fitting rebuke to its notions that the national government is all-powerful.
“The commonwealth defies the Secretary [of Health and Human Services] to point to any Commerce Clause jurisprudence extending its tentacles to an individual’s decision not to engage in economic activity,” Judge Hudson wrote. Such defiance is highly appropriate, particularly in cases such as this, in which Mr. Cuccinelli is protecting a state law against individual mandates. On this point, the judge wrote, “the states have a legally protected sovereign interest.”
Read that again: A realm exists in which the states, not the federal government, are sovereign. As the 10th Amendment stipulates, “The powers not delegated to the United States … are reserved to the states respectively, or to the people.” Ultimately, it is the people’s own individual sovereignty that is threatened by Obamacare. It’s that sovereignty that Mr. Cuccinelli is defending against federal tyranny.