Notre Dame Law Professors Weigh In
The Obama administration suffered a setback last December, when US District Judge Henry Hudson ruled a portion of the new federal health care law unconstitutional. Hudson, who was appointed in 2002 by President George W. Bush, stated that the individual mandate provision in the new legislation exceeds Congress’ power to regulate interstate commerce.
Rick Garnett, professor at the University of Notre Dame Law School, offered his view on the ruling, describing Hudson’s decision in perspective of a recent judicial trend.
“It was at least somewhat surprising that Judge Hudson concluded that Congress overreached with the health-insurance mandate,” Garnett commented.
“In recent decades, there has been an emphasis – or, perhaps, a re-emphasis – on the idea that our Constitution creates a national government of far-reaching, but still limited, regulatory powers,” Garnett said. “What’s more,” he commented, “the Supreme Court, under the leadership of Chief Justices Rehnquist and Roberts has been more willing than it was before to find and police the limits of those powers.”
In most cases, however, congressional laws pass without judicial oversight. “Federal courts defer to Congress when it comes to the question of whether a particular regulation is within Congress’s power to enact,” Garnett stated.
Garnett thus believes the decision does not represent the mainstream legal view. “It is fair to say that most legal scholars – correctly or not – believe that the Constitution, at least as it is understood today, authorizes Congress to enact the mandate,” he commented.
However, Grant also remarked that, “Judge Hudson’s ruling is certainly defensible.”
Charles Rice, professor emeritus at the University of Notre Dame Law School, defended Hudson’s decision, citing the importance of limiting federal authority.
“Judge Hudson has rendered an important service in describing this unconstitutional mandate as an ‘unchecked expansion of congressional power’ that ‘would invite unbridled exercise of federal police powers,’” Rice commented.
Furthermore, as Rice clarifies, not all of the new health care law is affected by Judge Hudson’s decision. “Judge Hudson’s holding is a limited ruling that Section 1501 is unconstitutional but severable from the rest of the Act,” Rice stated.
For a multitude of reasons, Hudson’s decision will be subjected to that of a higher court. Already, on Tuesday, January 18, the federal government appealed Hudson’s ruling. Rice believes the case will eventually appear before the United States Supreme Court.
“Ultimately, the Supreme Court will have to decide the issue,” Rice stated.
Predicting the Supreme Court’s decision, however; is a difficult proposition. As Garnett explains, even legal scholars can be wrong.
“Of course, few legal scholars in the early 1990s would have predicted that the court’s decisions striking down portions of the Gun Free School Zones Act or the Brady Handgun Violence Prevention Act,” Grant stated. “And so it would probably be a mistake to assume that the court will simply follow the view of law professors.”
Scott Englert is a sophomore in Siegfried who just celebrated his second bar mitzvah. He can be reached at senglert@nd.edu. Shalom!
