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Although it is the first of many court decisions he faces, Attorney General Ken Cuccinelli this week became the first person to successfully challenge President Obama’s federal health insurance scheme. U.S. District Court Judge Henry Hudson ruled a key component of the plan — the “individual mandate” — unconstitutional.

In his opinion, Judge Hudson concluded:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

He added that the individual mandate “is neither within the letter nor the spirit of the U.S. Constitution.” That letter meaning this: “Regulate” during the days of the constitution’s adoption meant, “to make regular.” Far from taking over entire industries, the federal government instead was to ensure that states didn’t discriminate against businesses from one state to the advantage of one from another.

The Obama administration argued that the constitution’s Commerce Clause gives the government broad authority to order Americans to purchase health insurance because not doing so adversely affects commerce. Of course, this unprecedented attempt to force Americans to purchase a product was predicated on labeling inactivity (not buying insurance) “interstate commerce.” Stranger than fiction, we know.

While the Obama administration will appeal Monday’s decision to the U.S. Fourth Circuit Court of Appeals, Attorney General Cuccinelli would prefer an expedited appeal directly to the U.S. Supreme Court. He was in talks with the Department of Justice about a joint motion to that affect, but it now appears DOJ wants no part of it (better to delay until more and more parts of the law go into affect). However, Mr. Cuccinelli told Fox New Channel’s Greta Van Susteren Monday night he may go forward on that by himself and also may appeal Judge Hudson’s refusal to place an injunction on the health care law (see video). He has 30 days from last Monday to make that appeal. Regardless of how or when, ultimately Obamacare’s fate will be determined by the U.S. Supreme Court.

While there are dozens of reasons to oppose Obamacare (see Obamacare411), the provision that requires otherwise free Americans to purchase health insurance or face penalties is the most egregious — but it is also the financial linchpin of the entire law. Without the mandate, much of the rest of the law is untenable.

Earlier this year, The Family Foundation supported the Virginia Health Care Freedom Act, the basis for the Commonwealth’s lawsuit against the federal government. It protects Virginia citizens from being compelled to buy insurance against their will. We applaud the Attorney General and his staff for their commitment to protecting the freedom of Virginians. For a great perspective on the hearing and Judge Hudson’s ruling, view Mr. Cuccinelli’s post-decision news conference (click here). We are the only news or Internet site that recorded and posted the entire news conference.

Upon further review, here is a telling paragraph toward the conclussion of Federal District Judge Henry Hudson’s ruling today that allows Virginia’s law suit against against the federal government’s ObamaCare health care law to proceed: (see entire ruling here):

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side’s position, this court cannot conclude at this stage that the complaint fails to state a cause of action. (Emphasis added.)

The secretary’s motion to dismiss will therefore be denied. Resolution of the controlling issues in this case must await a hearing on the merits.

The Congress shall have the Power To . . . regulate Commerce with foreign Nations, and among the several States, and with Indian tribes. …

Article I, Section 8, United States Constitution: “The Commerce Clause” 

Many in Congress admit they don’t know where in the U.S. Constitution (the document they swear to uphold) it says Congress has the power to takeover health care or interfere in any aspect of the economy. Others, ignorantly, say it’s in the Commerce Clause. Still others know they don’t have the authority, but live a lie in order to consolidate power in government, rather than the people, to further their statist aims (See U.S. Rep. Phil Hare). A very few, unfortunately, know that the power is nowhere to be found in the document.

Above is the Commerce Clause verbatim. It clearly means that the federal government’s only role is to ensure the equal treatment of commerce across borders, whether with other countries, native tribes or ”among the several States.” That’s right! States! Notice the equal footing the Framers gave states with “foreign Nations” — both are capitalized. The Framers did not want New Jersey, for example, taxing goods coming into it from New York differently than it did goods coming into it from Virginia. Similarly, New Jersey and Virginia couldn’t impose different tariffs on goods from England; the central government would referee that and put a uniform tariff on imports coming into the country at any port.

The Commerce Clause, then, had nothing to do with individuals conducting their own transactions, much less conducting the personal business of seeking treatment or medical advice. It means just what it says. Pretty simple.

Clarifying it further is former Judge Andrew Napolitano, seen on the Fox News Channel as its senior judicial analyst and heard on his own Fox News Radio program. Here is a telling excerpt from a piece he wrote for the Wall Street Journal last September:

I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.”   

Rep. Clyburn, like many of his colleagues, seems to have conveniently forgotten that the federal government has only specific enumerated powers. He also seems to have overlooked the Ninth and 10th Amendments, which limit Congress’s powers only to those granted in the Constitution. 

One of those powers — the power “to regulate” interstate commerce — is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control. …

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison’s understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept “regular.”

In the video below, Judge Napolitano, the youngest Superior Court Judge in New Jersey history, expounds on the original intent of James Madison and the Framers as well as the evils of an all-powerful, big-government. (The Framers had doctors, too, and saw no need to mention ”health care” in the Constitution!) Look no further than what the 18th century definition of “regulate” meant to know today’s government is out of control. The article, linked above, and the video, are well worth the big education you will get for such a short expenditure of your time.

Judge Andrew Napolitano: If the Framers thought health was a constitutional power, they would’ve mentioned it. After all, people got sick, then, too.

Nearly 100 grassroots activists, elected officials and candidates for office attended the Prince William and Manassas Family Alliance Gala dinner Monday evening where they were addressed by Attorney General Ken Cuccinelli. The AG updated the guests on the lawsuit filed by his office defending Virginians from the federal government’s new individual mandate to buy health care insurance and its violation of Virginia’s new Health Care Freedom Act, passed with bipartisan support this past General Assembly session, as well as the U.S. Constitution’s 1oth Amendment and interstate commerce clause. (Click here for the Manassas News & Messenger’s coverage.)

Interestingly, Mr. Cuccinelli referenced George Washington University Law School professor, and oft quoted, Jonathan Turley who has argued that the federal health care act could be the final blow to the Founder’s vision of federalism. Should Cuccinelli’s suit, or the others being brought by nearly two dozen states, fail, Turley insinuates that there would then be very little left outside the control or influence of the federal government. Mr. Cuccinelli added that if the government can compel its citizens to purchase one product (health insurance) there is nothing to stop it from purchasing another product (say, a car made by GM).

Essentially, he is arguing that individual citizens who do not have health insurance are thus not participating in the “interstate commerce” of health care insurance, and so cannot be compelled to purchase it by the federal government under the interstate commerce clause. Case law surrounding the interstate commerce clause is lengthy and confusing to say the least. However, there appears to be no other example where the courts have ruled economic inactivity to be interstate commerce (one exception being from 1792 when Congress compelled people to buy guns — really).

Ultimately, this case is likely to be decided by the U.S. Supreme Court. The AG doesn’t think  that will take place until at least mid-2012. The individual mandate in the health care bill doesn’t take effect until 2014.

Currently, 21 states, including Virginia, are involved with some type of lawsuit against the federal government concerning the health care law. The two primary suits are in Virginia and Florida. Mr. Cuccinelli urged the crowd Monday night to take advantage of the times to educate and inform their friends and family, particularly their children, on the first principles of our nation’s founding documents, such as the Declaration of Independence and the U.S. Constitution. Many people today do not know enough about our Founding or what those documents say to understand the implications of the federal government’s take over of what has always been a private enterprise.

Few disagree that there is need for some type of health reform in our nation. At The Family Foundation we struggle each year to pay the ever-increasing cost of health care for our staff. But few outside the beltway, or among the academic left, believe that the federal government is capable of managing our nation’s health care system wisely.