In a ruling released today in Virginia, US Federal District Court Judge Henry Hudson has ruled that the individual mandate requiring the purchase of health insurance which is the cornerstone of President Obama's recent health care reform bill, is unconstitutional.
Because the bill was written without a severability clause, the elimination of that central provision of the legislation could result in the failure of the entire bill, which would collapse like a house of cards, although this ruling specifically chose not to address the full implications of the removal of this key provision from the bill.
The ruling came as the result of a suit brought by Virginia Attorney General Ken Cuccinnelli, who is one of more than 20 state attorney generals filing suits disputing the constitutional legitimacy of the new health care law.
In his ruling, Judge Hudson said that:
"Congress lacked power under the Commerce Clause, or associated Necessary and Proper Clause, to compel an individual to involuntarily engage in a private commercial transaction...A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product...The unchecked expansion of congressional power to the limits suggested by the Minimal Essential Coverage Provision would invite unchecked exercise of federal policy powers. At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate."
Another similar suit is currently pending in the 4th US District Court and more fill follow. Civil libertarians are hailing this decision as an important landmark in the defense of individual rights and in the effort to reign in the expansion of government power which has taken place under the current and prior presidential administrations. Not surprisingly, the administration, which has staked so much of its future on this legislation, plans to appeal this decision.
Article comments
— go to most recent comments1 - Christine
I sure do hope that it is "the end of ObamaCare."
2 - Doug Hunter
I'm completely disillusioned with the law and the courts, if this fails on the technicality of the mandate it should not be taken at all as a statement of principle but just an error in judgement by the framers of the bill.
The government has several tools at it's disposal to make you pay for things, they should have used a more established one. For example, you now can't be made to purchase health insurance for yourself, but you can be made to pay for health insurance for others through medicare and medicaid??? They could have made this perfectly legal by simply sticking the government in as a middle man or even going single payer.
3 - Cochise
More like the beginning of the end. It still needs to go to the USSC.
4 - Dan(Miller)
Dave, you say
Because the bill was written without a severability clause, the elimination of that central provision of the legislation could result in the failure of the entire bill, which would collapse like a house of cards, although this ruling specifically chose not to address the full implications of the removal of this key provision from the bill.
As I noted here, a perhaps better way to have put it would have been that he decided that the mandatory purchase and related "penalty" provisions could not stand but that the remaining provisions could. Having found the mandatory health insurance purchase provision and the companion "penalty" unconstitutional, Judge Hudson determined that most sections could stand as severable from those. In view of the extreme haste with which ObamaCare had been "rushed to the floor for a Christmas Eve vote," he found it impossible to determine whether the various other provisions would have been passed without the mandatory health insurance provision and associated "penalty." He therefore severed those other provisions and allowed them to stand. To have referred to the penalty as a tax would, as Judge Hanson noted, have been politically "toxic;" that's why the tax reference, present in earlier versions, was changed to a "penalty" reference in the final legislation. That's also why efforts to garner congressional and popular support for ObamaCare used the word "penalty" rather than taxes; in a recession, taxes are seen as bad but penalties as OK.
The reactions of the usual suspects were, of course, predictable. Those who like ObamaCare claimed that Judge Hudson is a radically unwholesome conservative "activist judge" whose decision is wrong and will be overturned on appeal. Those who dislike ObamaCare praised his constitutional scholarship and claimed that his decision will be affirmed. I think implementation of ObamaCare would be a disaster produced by a very lengthy statute generally unread prior to its very hasty passage and likely harmful not only to medical care in the United States but also bad for the economy. I hope the decision is upheld on appeal, but much can happen between now and a Supreme Court decision. The statute may be modified by the new Congress, the Supreme Court may in the interim decide another case construing the Commerce Clause differently, and/or one or more Supreme Court justices may retire and be replaced. It's just too far away to guess. After the briefs have been submitted and oral arguments have been held it should be possible to make an informed prediction; not now.
Dan(Miller)
5 - handyguy
Ken Cuccinelli is a bigoted [intensely anti-gay] and destructive extremist. He may go on to do real harm to this country, or his tunnel-vision approach may go down in flames as it so richly deserves.
6 - zingzing
i'm pretty sure this was wholly expected. by the way "obamacare" was staggered, i'm pretty sure they were expecting judicial challenges. this might just be a way to force further debate with attention to the details, instead of idiotic claims like "death panels" and "socialism" (the world's moved on, catch up,) and all that nonsense. or maybe i'm overestimating politicians.
i've never quite liked the idea of FORCING all americans to have health insurance, but i'm not quite sure that's what it did anyway, and i'm pretty sure we all pay for it as if that were the case as it is. what's so wrong with paying your portion rather than just getting the portion that the lazy don't want to pay tacked onto your bill? seems pretty conservative to me.
and there are so many crucial things in "obamacare" that should not go by the wayside. making sure children have health insurance (they shouldn't be the victims of their parents' laziness), making sure health insurers can't deny you coverage based on a pre-existing condition (especially after they take a load of money from you before you discover you've had something), etc, etc, are all things that should be there.
the healthcare bill, as it went through, satisfied very few people. it didn't go far enough for some, went too far for others. i think, if we really looked at it, there'd be a lot we could agree on. healthcare, as it is, is a fucked up way to throw your money away. the insurance companies had their dicks out and they were wet as it was. i doubt many would disagree with that.
but to call this "the end of obamacare" is just ridiculous. what nation do you live in? you think this is "the end?" come on now.
and since when did the right LIKE the term "activist judge?" something's amiss here.
7 - Dave Nalle
Dan, I could have written it that way, but I was trying to keep it short and simple.
Ken Cuccinelli is a bigoted [intensely anti-gay] and destructive extremist.
True, Handy. But that doesn't detract from the good he has done here.
and since when did the right LIKE the term "activist judge?" something's amiss here.
Zing, Republicans will never have a problem with judges whose "activism" is a defense of the Constitution. That's what judges are supposed to act on.
Dave
8 - Arch Conservative
By virtue of being alive big brother is going to force you to buy health insurance....
Whether you can afford it or not........
Whether you need it or not...........
Whether you want to purchase it or not....
Sounds pretty unconstitutional to me.
9 - Jeannie Danna
It's not the end of the health insurance bill, but it certainly is an improvement.
Thank you Tea Party! Because of your obsession concerning what the *original framers wrote*, the insurance giants wont see that BIG BOTTOM LINE.
:D Have a nice day, Dave
10 - Jeannie Danna
"The guessing game is over. We know beyond doubt that the Teabag movement was created out of whole cloth by astroturf groups like Dick Armey's FreedomWorks and Tim Phillips' Americans for Prosperity, with massive media help from FOX News. We see the Birther fracas -- the kind of urban myth-making that should have never made it out of the pages of the National Enquirer -- being openly ratified by Congressional Republicans. We've seen Armey's own professionally-produced field manual that carefully instructs conservative goon squads in the fine art of disrupting the democratic governing process -- and the film of public officials being terrorized and threatened to the point where some of them required armed escorts to leave the building. We've seen Republican House Minority Leader John Boehner applauding and promoting a video of the disruptions and looking forward to "a long, hot August for Democrats in Congress."
This is the sign we were waiting for -- the one that tells us that yes, kids: we are there now. America's conservative elites have openly thrown in with the country's legions of discontented far right thugs. They have explicitly deputized them and empowered them to act as their enforcement arm on America's streets, sanctioning the physical harassment and intimidation of workers, liberals, and public officials who won't do their political or economic bidding.
This is the catalyzing moment at which honest-to-Hitler fascism begins. It's also our very last chance to stop it." Source
11 - Jeannie Danna
Dave,
Here is an article for you to read. No matter what you think or feel about liberals, we aren't lying to you.
:D Honest
12 - @dirtymedia
The Republicans are the ultimate hypocrites!
How do we pay for health care reform ?
** How do you pay for tax cuts for the wealthy ?
1. First attempt : threatening Social Security and Medicare Cut through the deficit panel.
2. Second attempt : holding the desperate Hostage, say, by the Ransom.
** Inaction cost, $9trillion over the next decade, ((Some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion--60 times greater than the gross cost of the $700 billion TARP financial bailout)).
Over the duration of healthcare debate, using the preliminary cost analysis of CBO, the reps opposed the public option stubbornly, but after the release of final score, they have been defiant on the referee.
The nonpartisan Congressional Budget Office estimates that :
Inaction cost in relation to health care reform totals $9trillion over the next decade.
Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade.
13 - roger nowosielski
Powerful words, Jeannie, although I'd hope you'd direct them at our broken political system. There are no saints or heroes on either side of the political divide. The Democrat's caving in with regard to the extension of Bush's tax cuts across the board is a perfect example of lack of spine. The extension of unemployment benefits could be secured by a far lesser price, such as eliminating or trimming the fat of the many government programs, not to mention the cost of our extended engagement in Iraq and Afghanistan. Shame!
Here's a link to Bernie Sanders' filibuster speech on the subject.
14 - Baronius
Zing - This decision isn't judicial activism, and conservatives aren't saying it is. Dan(M) used the term in quotation marks to refer to the complaints that will be leveled against the judge. When you questioned it, Dave made a play on words. But no one is defending judicial activism.
This is a matter of judicial review. Since Marbury v. Madison it's been assumed that the courts have the right to review laws regarding their conformity to the Constitution. (We can argue whether that's a fair understanding of the courts' job, if you want to.) Judicial activism is the creation of law by a court.
There's nothing activist about striking down a law, if that law violates the Constitution. The Roe decision was ostensibly judicial review, but it was based on an extremely odd reading of the Constitution, one that wouldn't have existed if the judges weren't seeking a reason to legalize abortion. Likewise, if the Roberts Court were to outlaw abortion without Constitutional grounding, it would be guilty of judicial activism.
When people are arguing over whether a decision constitutes judicial activism, debate usually focuses on whether the outcome is one that the judge wants and/or whether the ruling departs from standard legal interpretation. In this particular case, the judge was a Bush appointee, but there is no precedent either way for a governmentally-mandate purchase.
15 - Baronius
Jeannie, I don't agree with that analysis at all. But I agree with the author, that the way the term "fascism" is used these days, "everybody is somebody else's fascist".
16 - Jeannie Danna
Nothing has changed here...
Bar is still on talking points given to him by his blind party affiliation and Roger is acting as if he agreed with Senator Sander's speech. Pray tell me, what did the anarchist get out of a pro American filibuster in the name of the *unwashed* masses?
:D All these brains cells in both of you are going to waste, huh?
17 - Jeannie Danna
I am really surprised that both of you read & responded to my comments. Is your Amish style shunning over or is there no one else around?
18 - Doug Hunter
"Powerful words, Jeannie"
Absolutely, Roger. Designed to elicit an emotional fear response, motivate you to action, and justify your own negative thoughts and actions.
19 - Ruvy
I am really surprised that both of you read & responded to my comments. Is your Amish style shunning over or is there no one else around?
They don't like what I write, Jeannie, so they are answering you. I don't have an American party affiliation - and while I believe in socialized medicine, this bill was trash. If the courts tear it apart bit by bit without waiting for it to bankrupt you, judicial wisdom, if not activism, will have been displayed.
20 - roger nowosielski
Forgive me, Jeannie, for acknowledging you. It was a mistake.
21 - Ruvy
By the way, Dave, the plural for attorney-general is attorneys-general.
22 - Doug Hunter
To add extra irony, Jeannie is copying propaganda from other sources in one coment then in the next accusing others of relaying talking points.
23 - roger nowosielski
I wasn't relaying anything, Doug, just tried my damnedest to expand her thinking.
24 - Baronius
Honestly, Jeannie, I was just trying to be polite. Just because I don't want to get into a long discussion doesn't mean we can't be courteous.
25 - Jeannie Danna
Doug hunter,
#10 is referenced to it's original source.
As far as a fear response, that is what all of you seem to desplay whenever I post or comment here.
:D Hit a few nerves?