Judge Hudson's decision in Virginia v. Sebelius is hardly the last word on the constitutionality of ObamaCare's individual mandate. My guess is that there are four votes on the Supreme Court to uphold the mandate and that the "swing vote" in this case may not be Anthony Kennedy but Antonin Scalia.
I have always thought it a closer question that most legal academics who tend to be unconcerned with the absence of structural limitations of the power of the federal government. One could certainly assemble cases that seem to point to sustaining the mandate.
The problem is that, if Congress can do this, there is little that it cannot do. I think that forces people to take a hard second look at expansive readings of the commerce and taxing powers.
One of the more interesting aspects of the opinion is Judge Hudson's conclusion that the mandate is severable, i.e., it can be struck down while the rest of ObamaCare stands. Putting aside the legal merits of that conclusion, doesn't it ruin the plan? How can you force insurers to cover pre-existing conditions without a mandate? I had thought that the penalties associated with the mandate are not high enough to force people to buy insurance that they don't need. But, if Judge Hudson is right, there are no penalties at all.
It is not clear to me, however, that, on Judge Hudson's reasoning, a mandate could not be recast as a tax credit. The problem is, I think, that the numbers wouldn't work unless one combined the credit with a tax increase.
In any event, the plan may be well on its way to unraveling.