Skip navigation

Professor Randy Barnett has been saying all along that Obamacare was open to serious constitutional challenge. He was pooh-poohed by many. But today Judge Hudson decided that the constitutional challenges were serious enough to go forward with the case. He denied the Justice Department’s motion to dismiss for failure to state a claim (and for lack of subject matter jurisdiction).

 That, as Barnett says at Volokh Conspiracy, is a big deal:

Essentially, from day one, politicos like Nancy Pelosi and numerous law professors have been saying about the constitutional challenge to the individual mandate: “Nothing to see here folks, move along.” Today Judge Henry Hudson ruled, “there is something to see here folks, let’s stop and evaluate carefully.” That is a big step.

Since before the Senate passed its version of health insurance reform, constitutional law professors have been quoted as saying that any constitutional challenge to the individual mandate, and other aspects of the bill, are “frivolous.” Indeed, some of the state attorneys general were severely criticized by local Democratic politicians and pundits for joining on to the lawsuit and thereby “wasting tax payer dollars.” A few weeks ago, for example, I spoke with several reporters and columnists from Michigan to defend the Michigan AG from this very charge.

While today’s ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous. This is an essential implication of today’s ruling because, had they been frivolous, the motion to dismiss would have been granted. So, no matter what the outcome, today’s ruling vindicates the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power.

%d bloggers like this: