Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

So is Kerr right, and did Hudson just hand health care reform advocates a win? The political blogosphere is all over this one.

  • Hudson's Strange Analysis  "I'm no lawyer, but that's just not right," Mother Jones' Kevin Drum writes of Hudson's reasoning.
The Necessary and Proper Clause isn't meant to merely add an exclamation point to other provisions of the constitution. Rather, it says that rationally related subsidiary means are constitutional as long as the overall ends are constitutional. ... The entire issue at stake here is whether the individual mandate is a reasonable means to implement a piece of regulation that, broadly speaking, is clearly within Congress's purview. But because Hudson peremptorily sweeps this away with his odd tautology, he never really engages with the key question in the entire case.
  • Yep: It's Forced  "Even in the context of concocting arguments that the Constitution forbids Congress from enacting policies that you hate, this seems remarkably inept," The New Republic's Jonathan Chait writes.
  • You Can't Read the Necessary and Proper Clause as Unlimited, William A. Jacobson writes at Legal Insurrection, pushing back a bit at some of the harder lines taken by Hudson's critcs. "The result of [doing so] results in the absurd result that there is no limit not only as to what government can regulate, but what government can compel one to do." For example: "The government can regulate shampoo, because shampoo transits in interstate commerce in a variety of ways.  But can the government therefore compel people to buy shampoo?"
  • Hudson's Opinion Was Meant for Antonin Scalia, Jason Mazzone writes at Balkinization. Mazzone points to a Justice Scalia's concurring opinion in Gonzales v. Raich, which said that Congress must rely on the Necessary and Proper clause to regulate activities that substantially affect interstate commerce and can regulate noneconomic activity if it is necessary for regulating an economic activity. Hudson doesn't claim that Congress can't regulate health insurance markets, but that it can't regulate inactivity as part of regulating those markets.
[The] Supreme Court might reject any distinction in the necessary and proper clause between activity and inactivity—or reject Judge Hudson’s conclusion that not purchasing health insurance can, in light of the myriad ways in which the uninsured participate in the health economy, really be deemed inaction. Nonetheless, once read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.