A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform? Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error." Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson: If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution. Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think." .... More at the link.