Liberals in denial: The Orin Kerr Affair

"[I]t is intercourse." — Chief Justice John Marshall

Yesterday liberals went bananas, pursuant to a post by Prof. Orin Kerr at the Volokh Conspiracy, in which Kerr accused U.S. District Judge Henry E. Hudson, the author of Monday's PPACA opinion, of making a "significant error." Brian Beutler at TPM therefore called Hudson an "amateur," and MSNBC's Keith Olbermann made Hudson his "worst person in the world." Many others bowed to Kerr's apparent authority, including the inexplicably popular Madison blogger Ann Althouse.

None of them bothered to check Kerr's work before pounding out their screeds. But what should have been immediately obvious to anyone who had read the opinion — including Kerr — was that the passage Kerr was criticizing was not part of the judge's "ruling" but rather that portion of the opinion that was reiterating the arguments of the two parties, in this instance a claim made by VA's AG Ken Cuccinelli.

The following comment appears below this excellent rebuttal to Kerr:

Hudson got it right and Kerr got it wrong, and embarrassingly so for a law professor. The [necessary and proper] clause does not establish [its own] substantive legislative authority. The substantive constitutional hook must come from a separate constitutional authority, in this case the interstate commerce clause. This much Kerr seems to get right.

Kerr’s analysis seems to imply that the N&P clause can render constitutional a specific statutory section that is otherwise unconstitutional because the section is part of a larger legislative scheme. This is incorrect.

In this case, the challenge is specifically that the individual mandate provision of Obamacare is unconstitutional. The S.Ct.'s analysis in Gonzales, Lopez, and Morrison* demonstrates that the specific statutory provision(s) being challenged are subject to scrutiny by the Court. The mere fact that a specific statutory section is part of a larger legislative framework is not sufficient to support the constitutionality of that specific provision.

In layman's terms, the mere fact that Congress possesses the power to regulate the broad field of health care under the commerce clause is not sufficient to rebut a challenge to the specific statutory section that requires individuals to obtain insurance. Congress must establish that it has authority to legislate the specific provision.

The absence of economic activity cannot be regulated by Congress under the [interstate commerce clause], regardless of whether the absence of economic activity is part of a larger legislative scheme. It is unconstitutional for Congress to impose an individual mandate to purchase insurance or otherwise engage in economic activity. Unconstitutional acts of Congress cannot be rendered constitutional by virtue of the N&P clause.

Hudson's opinion could perhaps have been more explicit on this point, but it is hardly necessary.

Comment by Aged Attorney — 12/14/2010 @ 5:38 pm

Good stuff.

* Gonzales v. Raich (at issue: growing medical marijuana) stands for an expansive view of Congress's interstate commerce power, while U.S. v. Lopez (gun-free school zones) and U.S. v. Morrison (1994's Violence Against Women Act) both stand for a more restrictive application. These three Supreme Court cases (and a handful of others) provide much of the doctrinal grist for both supporters and opponents of the PPACA's individual insurance mandate.

All three cases, however, are addressed to deliberate activities.

eta: Think Progress issues a thoroughly ad hominem objection.

We're aware Henry Hudson is a Republican. As is John E. Jones III.