Most legal scholars agree with the Obama administration on this. They believe the commerce clause allows Congress to regulate economic decisions, not just economic activity. Hudson, as you know by now, doesn't buy that argument. Hudson believes the Constitution provides for a federal government far more constrained in its abilities to regulate the economy than any state government. In the state of Virginia (ahem), for example, drivers who refuse to purchase auto insurance have to pay the state $500 a year. In making this claim, Hudson has "rewritten the Commerce Clause," Tim Jost, a professor at Washington and Lee University law school, told reporters on Monday.
Drastically limiting the scope of the Constitution's commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise. Almost every meaningful action the federal government takes with regard to the economy rests on the commerce clause. In the past, the Supreme Court has read that clause to be incredibly constrained. During the Lochner era (1897-1937), the court routinely struck down federal laws regulating working hours, child labor, and minimum wages as inappropriate interventions in individuals' "right of contract."
In that time, individuals' "rights" to do whatever they wanted in the market—even if a 12-year-old "agreeing" to work 80 hour weeks for next-to-nothing made it more likely that other children would have to do the same—were thought to outweigh the state's interest (and, you know, the moral imperative) in not having children being worked to death in textile mills.
Similarly, in Hudson's decision, an individual's "right" to decline to purchase health insurance—even though, by doing so, she is creating a future burden on the state and making it less likely that the state will be able to pay for health care for others—is more important than the state's interest (and the moral interest) in trying to make sure that people don't die because they don't have enough money to pay for health care. The individual's economic rights trump all else—even the right (which, to be fair, many conservatives don't believe exists) of other citizens to life: the right to not die because they don't have health insurance.
There's more to be said about the validity of Hudson's constitutional arguments. Over at the Incidental Economist, Ian Crosby explains why even if you buy Hudson's argument that refusing to purchase insurance is not "activity," the ruling still doesn't hold water. But it's important to remember that there are real people's lives at stake here, and more fundamental things than arguments over constitutional legalese are at stake. Anthony Kennedy and Antonin Scalia are smart legal minds. They can probably make a fairly convincing constitutional argument for anything they decide—and as Bush v. Gore showed, they don't even have to do that.
Ultimately, the nine members of the Supreme Court are going to be making a political decision about how much power they believe the government should have over the economic activities of ordinary Americans. Should the feds be able to require people to buy insurance for health care, a universally used good that society is expected to (and does) provide? Or does the Congress of the United States have less power to regulate health care than the Legislature of the Commonwealth of Virginia has to regulate who pays to fix your Jetta after a fender-bender?
Nice plan, huh? Nobody of course would dare call what Hudson's done "judicial activism". But in the end the Supreme Court will decide what it wants to, and it could very well eliminate just about every standing federal regulation on the book governing just about every industry out there: the ultimate and permanent deregulation of the country's businesses from any and all oversight.
It would be chaos. States could simply do what they wanted to, and the federal government would basically have no power over things. Social Security, Medicare, Medicaid, minimum wage act, fair housing act, equal employment opportunity act, civil rights act, all of those would be toast overnight if there were no state laws on those. Kiss abortion and education laws goodbye too.
Red states could then be as backward, bigoted, and ignorant as they wanted to be. Don't like it? Move to another state where somebody gives a damn about evolution or civil rights or women.
Pretty scary endgame if you ask me. Too much "end", not enough "game". But there's a reason why Eric Cantor and the Teabaggers want to get this to the Supreme Court ASAP. Steve has this cold, I think.
The gutting of those is what Republicans are going to be trying to accomplish once they have the White House as well as complete control of Congress -- but that's not going to be a popular fight once they're actually engaged in it. Much easier to have the Court level the entire 20th-century progressive edifice with one wrecking ball, and let Republicans in Congress be the blameless cleanup crew clearing away what's left of the wreckage.
Wasn't us. Supreme Court did it. We're just following the Constitution when we annihilate the federal safety net. And this is totally not activist judges legislating from the bench. Nope.
If you can't secede from the Union, neuter the Union instead.