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Va. federal judge strikes down health care law

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A U.S. judge in Virginia on Monday declared unconstitutional a key part of President Barack Obama’s landmark healthcare law in the first major setback on an issue that will likely end up at the Supreme Court.

U.S. District Judge Henry Hudson, appointed to the bench by President George W. Bush in 2002, backed arguments by the state of Virginia that Congress exceeded its authority by requiring that individuals buy health insurance by 2014 or face a fine.

This was always going to end up at the SCOTUS so let this be the pathway to let the court finally settle it.

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  1. probably not, it’s funny that Republicans talk about activist judges and we get this baloney.  Hudson did note that his ruling was declaratory, it’s binding but it doesn’t really do anything.  It’s dumb and unfortunate for Republicans to take this action.  

    • ruling whether or not an actual statute is constitutional is not activist.  Requiring a legislature undertakes a particular action where no law exists is activist.  

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      p>That’s how I see it.  There is no basis in the constitution for a mandate.  Even David at the time thought there was a legitimate point made by opponents who claimed that.

      • Buying health care coverage wasn’t economic activity.  This is ridiculous.  Every other judge dismissed this out of hand, but the guy who owns Campaign Solutions, Inc., a Republican consulting firm who worked on Michele Bachmann’s campaign didn’t use the constitution in making his decision.

        • Who knew? Buying health care coverage wasn’t economic activity.

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          p>Buying food is an economic activity, but if Congress passed a law requiring that citizens had to buy an apple a day to keep the doctor away and they had to buy from private orchards, well, maybe that’s unconstitutional too.

          • they can’t coerce their citizens to partake in it.

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            p>I think that is what is being argued here.

            • Put it this way:  If the government can force you to buy healthcare, what on earth exists that the government can’t force you to buy.

              • The United States Government can’t FORCE someone to buy something from a private company.

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                p>End of story.

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                p>If someone wants to buy health care insurance, then absolutely the federal government (or states) can step in and regulate the plans. For right or wrong, there are some people that want to remain left alone and live off the grid. They can buy solar panels that government had regulation on. They can be regulated to conform to building codes if they build a home. At both points, THEY made a decision to purchase something. Government did not force them to buy either. Forcing someone to give money to a private company simply as a condition to reside in the United States though is unconstitutional.

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                p>I understand the frustration of those on the left. The IDEA of health care for all is admirable. This law is unconstitutional though. The only alternative I see under the Constitution is an amendment or increasing the scope of Medicare.

                • one that only an activist judge who owns a Republican consulting firm supporting Republican candidates who opposed health care reform would favor.

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                  p>Even Scalia disagrees.

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                  p>

                  For instance, the court found that the Commerce Clause could be used to require southern restaurants and hotels to serve blacks, even though what was at issue was their refusal to engage in commercial activity.

                  Jack Balkin, a constitutional law professor at Yale Law School, extends that argument. In a recent blog post, he notes that in the Raich case, Justice Scalia found that Congress can use the Commerce Clause to regulate, as Balkin put it, “even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective” (itals TPM’s). People who don’t buy health insurance, Balkin argues, aren’t simply “doing nothing,” as Rivkin, Barnett et al. claim. These people pass on their health-care costs by going to the emergency room, or buying over-the-counter cures. “All these activities are economic, and they have a cumulative effect on interstate commerce,” writes Balkin.

                  <

                  p>There is no case, no argument, only a judge who places politics over the constitution.

                • John, I respectfully disagree. The option for restaurant owners in the South was that they could not operate and discriminate at the same time. Some became private clubs. Others closed. The rest integrated. The government did not force people to then eat in restaurants that were desegregated. They could have stayed home and ate if they wished.

                  <

                  p>This is counter to the argument that people who don’t bye health insurance are “doing nothing.” If a descendant of Ethan Allen wants to stay on a farm in Vermont, pay for a doctor to visit him out of his own pocket, and die on his farm, is he interacting with the health care system at large? Is he costing anyone other than himself money?

                  <

                  p>Listen, I agree that ultimately transparent costs, TORT reform, and better plans that aren’t based on pay for service are in everyone’s interests.

                  <

                  p>It is not within the power of the federal government to force someone to do it. Even under the General Welfare Preamble. (Which can be argued gives NO power directly to federal government.)  

      • There have been lots of laws nullified on the basis of unconstitutionality that has prompted the right to scream activism over the decades:

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        p>Brown v. Board of Ed.
        Roe v. Wade
        Lawrence v. Texas

        • This is, at this point, really just a word that means “a judicial decision with which I disagree on policy, rather than legal, grounds”

          • …I’m perfectly happy to acknowledge that Brown v. Board of Ed was about as activist as they come.  Theoretically, SCOTUS could have narrowly read equal protection to not require integration, reaffirmed Plessy v. Ferguson, and merely required that districts spend the same amount per black student as they spend per white student.  However, is there anyone today who denies it was rightly decided?  Sometimes it takes judicial activism to uphold rights when the political branches can’t or won’t.

  2. I read a bit of the opinion, and while I am not a “necessary and proper” maven, the opinion sure seems to find that in order to be a valid exercise of Congressional power under “necessary and proper” the act must also be a valid exercise under some other Article I power, which strikes me as a mistake.

  3. Read something the other day that of the 4 (now 5) judges who’ve ruled on this law, the 2 Dem appointees favored it, the 3 GOP appointees did not.

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    p>I’d make book that the law is ruled unconstitutional 5-4.  Live by the half-aed compromise, die by the half-aed compromise.

    • News all night has said 2 rulings in favor and 1 against HCR, which is what I remembered as well.  This doesen’t even count the dozen or so attempts that were dismissed before getting to the ruling stage.

  4. …whether the effect falls within the powers of Congress?  There’s plenty of interstate commerce going on here, so if we accept that Congress has the power to regulate, then it necessarily follows that it can require the mandate, if that is what Congress deems as necessary and proper for the rest of the bill to take effect.  That being said I’m a loose constructionist, so since Congress decides this promotes the general welfare that’s all there is to it absent a prohibition thereon.

  5. Skimming over stuff at The Volokh Conspiracy, several experts have weighed in, it looks like a few issues are key and all depend on the Commerce Clause:

    <

    p>1)Is the mandate supported by the Necessary and Proper Clause. Orrin Kerr makes an argument that makes “a fairly obvious and quite significant error” asserting that Hudson’s reading of the Necessary and Proper clause makes it irrelevant to the Commerce Clause altogether.

    <

    p>2) Is the fine for not purchasing health insurance a tax or a penalty?

    <

    p>3) Does interpreting the Necessary and Proper Clause create too much latitude for federal government oversight?
    Jonathan H. Adler writes:

    satisfy the Necessary and Proper Clause then Congress could mandate that all individuals engage in any behavior which helps keep down health insurance costs by increasing the participation of healthy people in insurance pools or improving the health of those already in the pool. So, for instance, Congress could mandate all Americans join health clubs or purchase fruits and vegetables, for these too would help lower health care costs and facilitate achievement of health care reform’s goals.

    <

    p>I don’t have any idea whether these guys are conservative, liberal, or what, but I suspect that this part of the health care law is very questionable.

    <

    p>Single-payer anyone?

    <

    p>

    • The things posted by the bloggers themselves are generally interesting and useful, but the comments are generally not worth reading.

      <

      p>I have long thought that there is a potential problem with the mandate.  It certainly isn’t fair to simply brush the issue off, as is done above.  The very issue raised in these actions was the subject of much complaining here, if I recall correctly, when the program was called “Romneycare” and seemed like it would be helpful to the then-governor.

      <

      p>I also don’t think it is fair to say that these lawsuits have hitherto been dismissed “out of hand.”  

      <

      p>The major one, brought by Florida and 19 other states in the norther District of Florida, just denied a motion to dismiss by the government.  Another, in Michigan, did indeed dismiss the claim, finding authority under the Commerce Clause.

  6. The “mandate” was there to protect insurance companies, not people.  The judge ruled that the mandate is unconstitutional. So great, put it in without the mandate. People can then wait until they’re sick to buy insurance, because the court did not rule that insurance companies can’t be compelled to offer insurance despite pre-existing conditions.

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    p>Maybe once the health insurance companies go bankrupt, we’ll have single-payer at a tremendous cost savings.  

    • Heck, I’m fine with a free-market approach.  Let government offer its own alternative, which very possibly would drive the privateers out of business.

    • Was this law written as severable?  In other words can the rest of the law stand if the mandate gets struck down?

        • … think so:  

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          p>

          …The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.

          Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.

  7. the mandate Republicans currently hate was their idea. It was championed by the Heritage Foundation. It was part of Bob Dole’s 1996 presidential campaign platform. Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s.

    For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials.

    My personal favorite is Grassley, who proclaimed on Fox News last year, during the fight over Obama’s plan, “I believe that there is a bipartisan consensus to have an individual mandate.” (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)

    This is probably obvious, but in case there are any doubts on this, Republicans are cheering today’s ruling, but it’s not because they have a problem with the mandate. It’s not even because they have a substantive problem with the Affordable Care Act itself.

    This is about cheap politics

    .

    <

    p>from Steve Benen, who has the key to this whole thing.

    • They try the Republican idea, but it gets ruled unconstitutional, so they have to go with their original idea, single payer.  The Republicans can’t hold it up by saying that a mandate and private insurance companies would be a better way to do it, and they’ve already signed on to universal coverage, so now they have to go along with Single Payer.

        • It gets the electorate confused and angry, so voters lash out and vote against their economic interests. It also creates a nice playground for kleptocracy.  

          • And Republicans don’t really want to create chaos.

            <

            p>It’s just that the decisions Conservatives make are risky to many other people, as with incapacitated drivers.  So there is reason enough to keep the keys out of their hands.

            <

            p>That egg farmer in Wright County, Iowa, didn’t want to poison people.  But he chose to save money by cutting corners, and did poison people.  The owner of Massey Energy in West Virginia, Tea Party activist D. Blankenship, didn’t want his miners to die, but he chose to run his mines in a risky fashion.  George W. Bush didn’t want to harm tens of thousands of our soldiers (and suffer thousands of casualties), but he did want war, and the consequences followed.  

    • had “Democratic” judges? Do we really want to play that game where the Judge’s political background can be blamed for the decision?

      • Yes, every judge is appointed by either a Democrat or Republican President, but not every judge holds stock in a partisan consulting firm with ties to some of the very politicians pushing to nullify HCR.

  8. id we just raised the FICA tax and gave everyone comprehensive Medicare.  No constitutional issues there.

      • They would pass a law “requiring” all Doctors and hospitals to take the low paying Medicare… which would then mean huge increases on fees for all non-Medicare patients and then a large flurry of medical practices going out of business.

        • …is everyone is required to work on the same business model.  Doctors are living quite comfortably (not extravagantly) in other countries that do this, and no shortage either.

          • As it is, doctors have to be students (and live like students) for a decade, and then, when they’re done, they have several hundred grand of student loans.  And we’re going to tell them that they just need to get by on less?  And we don’t think that this would cause a decline in the number of doctors available to provide the services in the first place?

  9. … you wish for (emphasis mine):

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    p>

    The political case for their strategy is clear: The individual mandate, like most taxes, is unpopular. In fact, it’s one of the only unpopular elements of the whole bill. But it’s also one of very few ways to have a health-care system where everyone has coverage but private insurers dominate. In the long run, it may be the only way. That’s why Republicans originally thought up the idea, and why it’s mainly been associated with a Republican health-care bill. Mitt Romney, Chuck Grassley, Orrin Hatch, Bob Dole, Judd Gregg and Mike Crapo are just a few of the prominent Republicans who’ve cosponsored legislation with individual mandates.

    …

    … But if Republicans get it ruled unconstitutional in America, they’d be wise to ask themselves what other options they have: After all, the constitutionality of Medicare is not in question, and that’s really the other model we could eventually trend toward.

    • However, keep in mind that we do not simply “trend toward” better policies. Moving from the status quo is not inevitable, no matter how bad the medical system may be.

      <

      p>This is something that conservatives understand well, and some Glenn Greenwald types on the Left completely fail to understand. The Obama health care bill was certainly not perfect from a progressive standpoint, but once implemented sets us down the path towards a single-payer system. It is a “Trojan horse” for considerably more government involvement in health care, as conservatives fear and some liberals apparently want to willfully deny by pretending this is some sort of right-wing plan.

      <

      p>Conservative prefer the status quo to more government involvement in health care, which is why they are fighting like mad to kill this before it goes into effect. If it goes down, there will no longer be any “trend toward” single-payer. We’ll be back at square one.

    • the rushed vote. How do you think Obamacare would do in 2011? You guys just had the perfect storm to do whatever “extreme” bill you could do and even that got sidetracked in the end by Scott Brown’s election. If Obamacare goes down, maybe we’ll get some real reform (not just insurance companies, but Doctor and Hospital costs…).

      • Obama took office on Jan 20, 2009, seventeen days after the Senate and House were sworn in.  That healthcare bill was finished in like February or March of 2010.  That was NOT a rushed vote.

        • How did the Compromise Committee do handling the differences between what the House and the Senate wanted concerning Healthcare reform… oh, they didn’t have a compromise?

            • In the Senate, Majority Leader Harry Reid, D-Nev., and his GOP counterpart, Mitch McConnell of Kentucky, were joint sponsors of the bill, a symbolic gesture of bipartisanship on an issue that produced nothing but gridlock until midterm elections gave Republicans additional leverage in negotiations.

              <

              p>Co-sponsoring the bill, ain’t it sweet. Harry and Mitch, Kerry and Brown voting alike, Rick and Reneault…

              <

              p>

        • Congressional Democrats– and Senators Baucus and Reid fiddle-faddled for 13 months, and then had to rush.

  10. The ruling doesn’t have much of a practical effect. The issue is before a handful of federal trial courts right now. This decision was the first one ruling that the law requiring people to buy healthcare is unconstitutional because the law exceeds Congress’s powers. I believe there have been some other courts ruling otherwise.

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    p>The judge didn’t enjoin enforcement of the law because it doesn’t go into effect until 2014. At this point, the feds will appeal to the next level up in the federal court system (the Circuit court, which is between the federal trial court and the US Supreme Court), which for Virginia is the 4th Circuit. For those cases in which the trial court ruled in favor of the feds, the other party (i.e. the states challenging the law) will appeal to the circuit court (for the Florida case, this will be the 11th Circuit).

    <

    p>If the Circuit courts are all in agreement one way or the other, then the law will essentially be viewed as unenforceable. I doubt that will happen though, and would predict a “split” in the circuits. One of the major reasons that the US Supreme Court takes cases is when there is a split in the circuits, especially re: a law of this importance.

    <

    p>It’s considered a victory against the feds because it was slam dunk case for the states. The judge in Virginia didn’t buy any argument the feds were throwing at him for why the Act is constitutional. Not to say there isn’t some fed-power-hungry judge out there that won’t buy them the next time though.

  11. Looks like Judge Hudson should have recused himself, but couldn’t resist putting his thumb on the scales of justice.

    Henry E. Hudson, the federal judge in Virginia who just ruled health care reform unconstitutional, owns between $15,000 and $50,000 in a GOP political consulting firm that worked against health care reform.

    …snip…

    Hudson’s annual financial disclosures show that he owns a sizable chunk of Campaign Solutions, Inc., a Republican consulting firm

    …snip…

    Ken Cuccinelli, the Virginia attorney general who filed the lawsuit that Hudson ruled in favor of today, paid Campaign Solutions $9,000 for services rendered in 2009 and 2010.

    Hacktastic!

    1. Is SCOTUS likely to rule the mandate unconstitutional?  Based on recent rulings, SCOTUS seems to have become hyperpartisan, and thus I’d guess a 5-4 ruling against the mandate – but I’m no expert.  Heck, I’m not even an amateur.

    <

    p>2. Should the White House have reasonably known that SCOTUS was likely to kill the thing?

    <

    p>3. If the mandate goes away, is the whole thing dead?  Even aside from the severability argument, it seems like the various deals would unravel.

      • Congress voted on a bill of goods – that bill of goods has now changed.

        <

        p>My understanding is that there were also a number of under-the-table-deals – for example, the deals to scuttle the public option in exchange for backing from various groups (Pharma, AMA, etc.)

        • …but the deal is done.  A member of Congress can’t say he wants to rescind his vote because of changed circumstances.  Congress can try repeal as some threaten, but the interest groups are just out of luck.

          • e.g., Congress could refuse to pass the budget until Obama agrees to some changes in the law. (I know that Clinton told Congress to fuck off when this happened to him, and he won, but Obama is a different creature.)

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