Greg Sargent: Looks like Judge Hudson decided to re-write the Commerce Clause...

Wasn't that nice of him?

Tim Jost, a professor of law at the Washington and Lee University Law School, dismissed this argument, deriding it as a fundamental misreadling of the Constitution and claiming that the judge has "rewritten the Commerce Clause."

Jost, who spoke to reporters on a conference call organized by the pro-health reform Center of American Progress, accused Hudson of an overly narrow reading of the Commerce Clause. He said the judge's reading turned on the idea that the Commerce Clause only focuses on regulating economic activity, when in fact it also empowers Congress to regulate economic decisions that are "not immediately classifable as activity."

The Commerce Clause, Jost said, "really turns on economic decisions." By this Jost means that the Commerce Clause empowers Congress to step in and regulate when Americans fail to participate in economic activity in a way that impacts interstate commerce. In other words, failing to purchase health insurance does not constitute economic activity -- in a sense it's the absence of economic activity -- but Congress can step in anyway.

Jost argued that the Supreme Court has already upheld the right of Congress to regulate such economic decision-making. For instance, Jost noted, in the 1942 case Wickard v Filburn, the Supreme Court ruled that the Commerce Clause gives Congress the authority to prohibit wheat farmers from growing wheat for their own use. This forced them to participate in interstate commerce to get wheat.

The Constitution, by the way, empowers Congress "to regulate Commerce with foreign Nations, and among the several States."

Jost noted that with Wickard v Filburn, the Supreme Court affirmed Congress' authority, under certain circumstances, to step in and force participation in interstate commerce when individuals declare: "I'm not in the stream of commerce. I'm just out here on my own." This is directly comparable to the debate over the individual mandate, Jost pointed out.

"This decision is very defective," Jost concluded, "and will be reversed by the appellate court or the Supreme Court."