Some Thoughts on Virginia v. Sebelius

The District Court for the Eastern District of Virginia held that the Minimum Essential Coverage Provision of the Health Care Act is unconstitutional, insofar it exceeds the enumerated powers of Congress under Art. 1 Section 8 of the U.S. Constitution. As is the case often, the main question before the Court was whether the Minimum Essential Coverage Provision (it provides that individuals who do not purchase health insurance shall be fined) was within the scope of the interstate commerce clause or the necessary and proper clause of the Constitution. The Court found that the provision exceeded these clauses and the taxation power of the federal government.

Although one could question the wisdom of many aspects of the Health Care Act, the decision in itself seems to ignore the law set by Gonzales v. Raich (2005); the latter was the decision that held (as did Wickard v. Filmore in 1942) that even private activities may be regulated, falling into the scope of the interstate commerce clause, if their aggregated effect somehow affects (albeit even indirectly) interstate commerce. Moreover, the federal government put forward an argument, taken from Perez v. United States (1971), that specific actions, even if they may not affect interstate commerce by themselves, can still be regulated, if they fall in a class of activities that may be constitutionally regulated.

These arguments seem very sound and stand on some 60 years of precedent, although there is much to be criticized within such precedent. It is very unfortunate that Gonzales reversed the trend that had been seeming to emerge from the United States v. Lopez (1995) and United States v. Morrison (2000) decisions; in those two cases the Supreme Court held that not every activity can be regulated purportedly on interstate commerce grounds, especially if no connection to commerce whatsoever exists. The Court invalidated a federal statue that prohibited the carrying of weapons close to schools in Lopez and the Violence Against Women Act in Morrison, as neither of those pieces of legislation had anything to do with commerce. 

In Gonzales, however, it held that the federal government had the power to prohibit the cultivation of marijuana in one's home - although there had existed a California statute allowing the cultivation of marijuana for personal and medical use, a federal law with the opposite content was let stand. The Court's reasoning was that, whenever someone consumes the marijuana they have produced, they fail to buy the same amount on the market (which is an illegal interstate market), thus affecting interstate commerce.

Sadly, this reasoning should apply to the Minimum Essential Coverage Provision. Instead, the District Court held that refusing to purchase medical insurance is not even an activity at all and thus it could not be regulated under the interstate commerce clause. This decision is almost certain to be reversed - unless the Supreme Court overrules Gonzales and forces Congress to respect the limits of the enumerated powers.