Monday, December 13, 2010

The remedy

Judge Hudson's decision that the minimum coverage requirement exceeds Congress's enumerated powers is rather unsurprising. Also unsurprising is his rationale: (1) that Congress cannot regulate conduct when the individual has not yet made any voluntary act to enter the market, and (2) that 1501 is not a bona fide tax, as Congress intended it to be a regulation, and thus cannot be justified by the General Welfare Clause.

Perhaps more interesting part is what he said with respect to the remedy:

1. He declared that only 1501, and any directly-dependent provisions that specifically refer to 1501, are unconstitutional.

2. He denied Virginia's request for injunctive relief, and instead merely provided a declaratory judgment.

More to follow soon.