The Constitutional Fight at the Center of the Health Care Challenges

U.S. President Barack Obama, Vice President Joe Biden, and senior staff applaud in the Roosevelt Room of the White House, as the House of Representatives passes the health care reform bill.

Welcome to Politics Bites, where every afternoon at It's A Free Country we bring you the unmissable quotes from political conversations on WNYC. On today's Brian Lehrer Show, Dahlia Lithwick, senior editor at, discusses why a federal judge in Virginia ruled that a portion of President Obama's health care legislation is unconstitutional.

Judge Henry E. Hudson of a Federal District Court in Richmond ruled on Monday that the government cannot require people to buy health insurance, striking down one of the key components in Obama's health care plan. He's the first judge to rule against the provision, and the ruling contradicts two other federal rulings that support it.

The two judges who upheld the mandate were Clinton appointees and Judge Hudson of Virginia is a Bush appointee. Dahlia Lithwick says these federal judges are all looking at the Constitution's commerce clause in very different ways, and maybe there's a pattern to their interpretations and their politics.

And so I think if, as this plays out and plays all the way up to the Supreme Court, we just have conservative and liberal views of what government authority encompasses. That's a pretty distressing signal about where American jurisprudence is.

She said the lawsuit filed by Virginia Attorney General Kenneth T. Cuccinelli is also sort of "Tea Party Suit."

This was always an attempt to reclaim the Constitution. He was citing 18th century jurispudence in his original brief in this case. This is an attempt to restore a sort of Constitution that they feel has been absolutely destroyed in the past century. And so I think the other side of this is, this isn't judicial activism. This is something that is restoring a balance of power between the branches of government, between the states and the federal government, that has been obliterated. And that's why you hear language like liberty... This is an attempt to really restore the framers' Constitution and that's why this becomes very interesting.

In light of "restoring the framer's Constitution," one caller mentioned an act in Congress in the 1770s that required men over the age of 18 to buy weapons in preparation for the militia. Lithwick says this act is under discussion in legal circles about how it could apply to a health care mandate.

That was to solve a problem of, we need folks to fight to defend the very existential existence of the United States. Now, I think I would probably agree that that's parsing, but this is also an existential threat. If we can't ensure Americans, if every family that buys insurance sees their premium go up by $1,000 because other folks aren't purchasing insurance, that's as serious a threat, maybe not as serious as marauders at the border, but certainly this is the kind of collective action problem that is implicated.

Cuccinelli's lawsuit shows that the surge against this provision in the health care bill has Constitutional force, contrary to popular belief earlier this year. He argues, if the government can order you to buy health care, they can order you to buy a car, vegetables, anything at all, and this he claims is unconstitutional.

Another caller had a similar concern; if they shouldn't require health care, then how can the government require us to have car insurance? Lithwick says this question is not only a talking point, but was also a clear struggle for Judge Hudson.

It's quite clear that [Judge Hudson] is having trouble finding a limiting principle, where if the government can suddenly force you to buy a product in the market, then where does this stop? One thing that's clear to me coming out of the Hudson opinion yesterday is that the Obama administration is going to have to find some kind of limiting principle... and say look, just because the government can force you to participate in the health care market, doesn't mean they can make you buy rutabagas.